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ICBC Injury Claims and Future Wage Loss

Written by admin on February 24, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized. 49 Comments on ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished. Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy, These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…“

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law. In a thorough analysis Madam Justice Smith gave the following reasons:

[140] While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating:

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade. The case turned on its facts and did not establish any new principle of law. Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it. I am satisfied that Steward has no application in the case at bar.

[141] In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident. The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches. The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”. The assessment of damages was upheld on appeal. Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made. He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations. Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations. There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142] MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42] That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations. Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143] I conclude that the approach I should take to the assessment of lost earning capacity has not changed. Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

______________________________________________________________________________________

On another note, today’s case dealt with chronic soft tissue injuries and serious headaches. In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113] I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports. Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions. Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient. Dr. Jung’s two examinations of the plaintiff were thorough and well-documented. I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence. I also accept the evidence of Dr. Blasberg.

[114] Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back. I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint. There is no evidence that he suffered from these symptoms prior to the motor vehicle accident. I do not find on the evidence that stress causes his symptoms, although it may exacerbate them. I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to. I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115] The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night. The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident. As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment. Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116] Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better.

Pain and Suffering and Your ICBC Injury Claim

Written by admin on February 23, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 107 Comments on Pain and Suffering and Your ICBC Injury Claim

If you have an ICBC Injury Claim for Non-Pecuniary Damages as a result of a BC Car Crash (a tort claim) the best way to determine the potential value of your non-pecuniary damages (damages for things such as loss of enjoyment of life, pain and suffering) is to look at how courts have treated similar ICBC injury claims.
When looking to previous court cases for guidance some of the things you will want to look at are similarities with the type of injury, the severity of injury, the age of the Plaintiff, whether the injury involves a dominant or servient limb, the types of treatments involved and the prognosis. Another useful factor is recency. If you can’t find recent cases with similar injuries and are relying on older cases you should adjust the damages for inflation to get a sense of what they would be worth today.
No two injuries are identical and the best one can usually hope to do is find ICBC Injury Cases with a similar injuries to help establish a potential range of damages. In recognizing the the uniqueness of each ICBC Injury Claim Mr. Justice Halfyard said the following in the case of Tuner v. Coblenz:
It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall. No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity. The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different. The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.
As an ICBC Injury Claims Lawyer I have enjoyed publishing this blog to help people have access to a database of ICBC Injury Claims. Time permitting I intend to keep this service up. To this end, here is the latest ICBC Injury Claims update.
Reasons for judgement were released today by the BC Supreme Court (Rattenbury v. Samra) awarding a Plaintiff $30,000 in non-pecuniary damages as a result of an ICBC Injury Claim.
In today’s case the 23 year old plaintiff was injured when he was involved in an intersection crash in Surrey, BC. The crash occurred when the Defendant attempted a left hand turn in front of the Plaintiff’s vehicle. Fault was admitted leaving only the issue of quantum for trial (value of the claim).
In this case the Plaintiff suffered a concussion and had headaches, neck pain and shoulder pain. These injuries resolved fairly quickly. The most serious injury was an alleged low back injury. The Plaintiff’s physician gave evidence that the collision caused a disc injury to the L5/S1 level of the Plaintiff’s spine.
The court rejected this opinion and found that this disc injury could have easily preceded the car crash given the Plaintiff’s very active lifestyle. The court did find, however, that even if the disc injury was unrelated to the car crash this disc injury became symptomatic with pain because of the collision. The court made the following finding:

[86] I find myself unable to accept Dr. Fritz’s opinion that the disc injury occurred in the motor vehicle accident. Certainly the disc injury does exist but Dr. Fritz agrees that it is impossible to prove when it occurred and it could just as easily have occurred from the plaintiff’s other activities than from the motor vehicle accident. Dr. Fritz did not treat the plaintiff before his accident and it is therefore understandable that he would conclude that the disc injury occurred in the accident when the plaintiff demonstrated a restricted straight leg raising after the accident. However, I do not think that is enough to prove the disc injury occurred in the accident itself.

[87] In my view it is enough to prove, however, that even if the disc injury preceded the accident, it became symptomatic with back pain because of the accident. The evidence is that the plaintiff had no back problems before the accident and was a completely healthy and physically active young man. As a result of the accident he could not play soccer for six months and was unable to do any of the heavy lifting in his job at Black & Lee.

[88] The plaintiff’s evidence of originally not being able to do any heavy lifting at work but being able to do it at the time of his examination in January 2008, and then not being able to do it again by the time of trial, is certainly strange. However Dr. Fritz was never questioned about this evidence and it is logical to me that the plaintiff may have been able to resume the heavy lifting for a time after the accident, with back pain, but over time became too wearing on him and he had to stop.

[89] I am satisfied that it has been proven that the plaintiff has chronic back pain resulting from the disc injury, even if that injury preceded the accident. I must accept Dr. Fritz’s opinion that it is chronic because I have no other medical opinion.

[90] I do conclude, however, this chronic back pain is only mild in nature, in the nature of a nagging back pain that does not disable the plaintiff from pursuing his soccer at the highest level or his golf or any other sports that he used to enjoy, and does not prevent him from working full time at the business in a more supervisory role.

The following damages were awarded after a 2 day trial:
Non-Pecuniary Damages: $30,000
Past Wage Loss: $1,088
Special Damages: $271.56

A Busy day with ICBC Injury Claims

Written by admin on February 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 42 Comments on A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:

30] Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31] I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32] Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:	$35,000.00
Special damages:	$8,500.00
Past loss of wages:	$12,000.00
Loss of capacity:	$20,000.00
TOTAL:	$75,500.00

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:

[109] In summary, my conclusions are as follows:

(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c) Mr. Haag’s claim for past income loss is dismissed.

(d) I award Mr. Haag $60,000 for loss of earning capacity.

(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

(a)	Non-Pecuniary Damages	$30,000
(b)	Loss of Income to Trial	$15,000
(c)	Loss of Earning Capacity	$15,000
(d)	Future Care	$ 500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:

1.	Pain and suffering	$115,000
2.	Past wage loss (gross)	$75,000
3.	Impairment of earning capacity	$262,000
4.	Special damages	$47,400
5.	Future care	$75,000

Whew! Now back to work.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on February 17, 2009. Posted in Civil Procedure, independent medical exams, Uncategorized.

Ok, second post of the day on this topic.
Typically ICBC (on behalf of their insured defendant) are able to send a Plaintiff to an Independent Medical Exam in the course of a BC Supreme Court lawsuit in order to level the playing field. In certain cases they are entitled to more than one exam.
Reasons for judgement were released today (Norsworthy v. Greene) dismissing a defence applicaiton for a second examination in an ICBC Injury Claim.
In this case the Plaintiff obtained several medico-legal reports including the report of a physical medicine specialist and a Functional Capacity Evaluation. ICBC had the Plaintiff examined by Dr. Schweigel. Dr. Schweigel provided the opinion that the Plaintiff had soft tissue injuries and that she “could have been off work for roughly 3 months. After that she should have been able to return to work in a graduated fashion. Within five to six months, she should have been able to return to full time work. This lady is not disabled now from all the activities she was doing prior to the two MVA’s“.
The Plaintiff’s experts disagreed and provided opinion that her injuries were more severe and disabling that opined by Dr. Schweigel. ICBC applied for a second ‘independent’ exam on the basis that they should be entitled to reply to the Functional Capacity Evaluation opinion obtained by the Plaintiff. In rejecting the applicaiton Master Caldwell of the BC Supreme Court gave the following summary of the law regarding requests for multiple Independent Medical Exams:

[22] It should be obvious to any reader of these two reports that each was prepared by two persons with two completely different disciplines and approaches; yet there was a noticeable crossover in some of the observations made by each of them.

[23] In Christopherson v. Krahn, 2002 BCSC 1356, Madam Justice Smith made the observations at para. 9 that the test of reasonable equality does not mean that for each specialist relied upon by the plaintiff, the defendant is entitled to an IME from a similar specialist. Smith J. went on to deal with this proposition when she quoted from Henry v. Derbyshire, [1997] B.C.J. No. 1750, a decision of Master Nitikman where, at para. 13, the master stated:

A third applicable principle is that the party seeking the examination is not limited to one independent examination but

The court will not order a second examination merely to permit the defendant to get a second opinion on the same matter. [She went on to say] A second examination may be appropriate where there is some question which could not have been dealt with on the first examination. The applicant must show a reason why it is necessary for the second examination.

[24] I take the view that in the case at bar the defendants are seeking a second examination pursuant to Rule 30(2).

[25] The IME sought by Dr. Schweigel was conducted after the defendants had knowledge of the earlier functional capacity evaluation of the plaintiff by an occupational therapist retained by the plaintiff, yet the defendants chose to have an IME conducted by an orthopedic surgeon. That opinion seems to be firm. Now the defendants seek an opinion of an occupational therapist which may undermine the opinion of Dr. Schweigel, their own expert.

[26] Respectfully, in my view, although the defendants point to the different purposes of the reports, I do not believe that those differences alone provide a valid reason for a second report pursuant to Rule 30(2).

[27] Accordingly, I dismiss the defendants’ application and award the plaintiff her costs for preparation for and attendance at the hearing of this matter.

ICBC Injury Claims and Late Independent Medical Exams

Written by admin on February 17, 2009. Posted in Civil Procedure, independent medical exams, Uncategorized.

When advancing an Injury Claim in the BC Supreme Court the Defendant’s are entitled to send the injured plaintiff to an independent medical exam or exams in order to ‘level the playing field’.
If a litigant wishes to rely on expert evidence addressing injuries Rule 40A of the BC Supreme Court Rules sets out the timelines for disclosure of such evidence to the opposing side. Sometimes, ICBC defence lawyers apply for multiple independent medical exams and sometimes these applications are brought late into the pre-trial process such that any report generated will not comply with the timelines of Rule 40A.
Reasons for judgement were released today (Critchley v. McDiarmid) by Mr. Justice Burnyeat of the BC Supreme Court clarifying the law as it relates to late applications for independent medical exams. In today’s case the court ordered that the Plaintiff see a psychiatrist even though the scheduled appointment was to take place outside of the timelines required by Rule 40A. In reaching this decision the court summarized the relevant legal principles as follows:

[16] In Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (B.C.C.A.) Finch, J.A., as he then was, stated on behalf of the Court that the purpose of Rule 30 was:

This Court has repeatedly said that the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. What steps are necessary to achieve that end is a matter of discretion for the chambers judge to assess in the circumstances of each case.

[17] Subsequent decisions have established the following general principles: (a) the timing of the request for the independent medical examination is a relevant consideration in that a late request by a defendant may create a prejudice to the plaintiff by placing the plaintiff in a situation where he or she is either unable to respond to the proposed examination or is forced to seek an adjournment of the trial; (b) an inability to respond to a proposed examination constitutes prejudice to a plaintiff; (c) and an adjournment of a trial constitutes prejudice to a plaintiff.

[18] I am of the view that the exercise that was before the Learned Master was as set out by Master Groves, as he then was, in Mackichan v. June and Takeshi, [2004] B.C.J. (Q.L.) No. 2296 (B.C.S.C.):

The argument for a late medical examination is really a complication, or better put, an extension of the Stainer v. Plaza reasoning in that, I believe, the court must consider fairness between the parties and a balancing of prejudice when a request for a late medical examination is made. It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I accept, cause an adjournment of the trial.

(at para. 11)

[19] While I am satisfied that the question of whether an independent medical examination raises a question vital to the final issue including the quantum of damages so that it is appropriate that there be a re-hearing of the matters which were before the Learned Master, the submission made on behalf of Mr. Critchley was that this was a purely interlocutory matter and that the Court on a review would have to find that the Learned Master was clearly wrong.

[20] On the assumption that the appeal must be heard on that basis, I have come to the conclusion that the Learned Master was clearly wrong in reaching his decision. First, I cannot be satisfied that the Learned Master considered whether or not the proposed independent medical examination was required to put the Defendant on equal footing with the Plaintiff. Nowhere in his Reasons does the Learned Master make this finding or give full consideration to this question.

[21] The Learned Master also fell into error by requiring the Plaintiff to establish with near certainty that the Trial would be adjourned. By using the phrases “would be adjourned”, “why an adjournment would be inevitable”, “it is not automatic that the trial will be adjourned”, and “I have no evidence to conclude that there would be an adjournment ….”, the Learned Master was in error. The Learned Master pointed out in his Reasons that which is obvious – the question of whether an opinion produced after an independent medical examination will result in an application for an adjournment can only be answered after an expert opinion is tendered under Rule 40A of the Rules of Court. Here, it may well be that there is no need for the Plaintiff to arrange for an expert opinion to counter what might appear in the expert opinion flowing from the independent medical examination requested. Accordingly, it is never correct to require a party to show that an adjournment would be “inevitable”.

[22] The nature of the findings in an opinion after an independent medical examination, the timing of the receipt of it, and the proximity of the likely receipt of it in relation to the date set for the Trial are factors which must be taken into account but whether or not an adjournment will be inevitable is not a factor which need be shown. The question of whether an adjournment may be required is merely one of the factors which should be considered. However, it is not the sole factor to be considered on the question of whether the independent medical examination should be ordered.

[23] I am also satisfied that the Learned Master erred by taking into account an earlier examination date which Mr. Critchley was not able to attend and by concluding that, had this earlier examination taken place, there would have been no prejudice to the Plaintiff. I am satisfied that the Learned Master should only have given consideration to the proposed date of the examination and not an earlier date.

[24] In the circumstances, I can conclude that the Learned Master was clearly wrong and that the Order made should be set aside.

More on ICBC Claims Lawyers and ICBC's 'Strategic Alliance Agreement"

Written by admin on February 16, 2009. Posted in Tort Reform, Uncategorized.

Is your ICBC Claims Lawyer also in partnership with ICBC? Depending on who your lawyer is the answer could be yes. It is very important for any injured person looking to hire a lawyer for their ICBC Injury Claim to ask whether their lawyer has signed ICBC’s SAA. (for background see my previous article Does your Lawyer act fo ICBC, ask you may be surprised by the answer).
Today the BC Court of Appel released reasons for judgement (Tepei v. ICBC) confirming that lawyers (or law firms) that have signed ICBC’s Strategic Alliance Agreement are in a ‘partnership’ type relationship with ICBC.
In upholding a previous judgement ruling that an arbitrator who signed ICBC’s SAA agreement gave rise to a ‘reasonable apprehension of bias’ in presiding over an ICBC Injury Claim the Court of Appeal said the following about ICBC’s SAA and ICBC’s relationship with lawyers who signed it:

[1] KIRKPATRICK J.A.: This is an appeal from an order removing an arbitrator and vacating his rulings founded on a reasonable apprehension of bias. The chambers judge found that the Strategic Alliance Agreement entered into by ICBC and lawyers it retains provided comprehensive terms which emphasized the firm’s commitment to ICBC as “partners” in its enterprise rather than simply as counsel acting from time to time on individual cases.

[2] For substantially the reasons given by the chambers judge (2007 BCSC 1694, [2008] 3 W.W.R. 664, 78 B.C.L.R. (4^th) 95), I would dismiss the appeal. In my opinion, a reasonable and right minded person would expect the arbitrator to disclose the fact that his firm was a signatory to the Strategic Alliance Agreement and that the arbitrator was the principal contact between his firm and ICBC. Similarly, the fact that the arbitrator’s firm had signed a Strategic Alliance Agreement would give rise to a reasonable apprehension of bias.

[3] I am also not persuaded that the chambers judge erred in finding that the respondents’ failure to comply with the rules of B.C. International Commercial Arbitration Centre (Domestic Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre) (“BCICAC”) did not preclude them from claiming relief under s. 18 of Arbitration Act, R.S.B.C. 1996, c. 55. Section 18 of the Act permits a party, at any time, to apply to the Supreme Court for removal of an arbitrator who commits “arbitral error”, which would include a reasonable apprehension of bias. The Act provides remedies wider in scope than a challenge to impartiality and independence under s. 15 of the BCICAC rules, including vacating the arbitrator’s rulings and awards.

[4] It is obvious that arbitral error is central to the jurisdiction of the arbitrator. The jurisdiction of the Supreme Court cannot in these circumstances be trumped by the rules of the BCICAC.

$1.1 Million Awarded for Mild Traumatic Brain Injury with Poor Prognosis

Written by admin on February 12, 2009. Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding $1,186,425 to a Plaintiff who sustained a Mild Traumatic Brain Injury (MTBI) in a British Columbia car collision. The reasons for judgement were lengthy and consisted of over 400 paragraphs. This decision is worth reading for anyone advancing an ICBC brain injury claim for some insight into how complex some of the trial issues can be.
The court made the following findings with respect to the Plaintiff’s injuries and prognosis:

(a) Diagnosis

[275] Ms. Towson suffered a moderate to severe injury to her neck and back in the October 2002 accident.

[276] Some of the evidence focused on whether Ms. Towson’s complaints arose from a traumatic brain injury, or from chronic insomnia and ongoing chronic pain. Whether Ms. Towson’s symptoms arose from a traumatic brain injury in the October 2002 accident or from the chronic pain it caused, which led to the significant weight gain and the chronic insomnia, the symptoms were caused by the October 2002 accident.

[277] On the question of diagnosis, I prefer the evidence of Drs. Ancill, Krywaniuk, Knazan, Neumann and Feldman over the evidence of Dr. Tomita. Dr. Ancill has almost four times as many years of experience as Dr. Tomita in the practice of psychiatry. Dr. Ancill treated Ms. Towson, and saw her 13 times over almost four years. Dr. Tomita’s opinion was significantly based on his interpretation of Dr. Ancill’s records as demonstrating that Ms. Towson had recovered. Dr. Ancill did not interpret his own records that way.

[278] The weight of the evidence establishes that Ms. Towson suffered a traumatic brain injury, resulting in post-concussion syndrome. This has resulted in problems with concentration and memory, sensitivity to noise, anxiety and fatigue. She has chronic pain in the left neck, left shoulder and arm area, and periodic headaches. Her symptoms are so severe that she is not presently able to work. She is at risk of further episodes of depression.

(b) Prognosis

[279] The question of Ms. Towson’s prognosis is also difficult. She has made a serious effort to improve, and has been treated with medication, physiotherapy, massage therapy, chiropractory, and psychotherapy. Despite that, significant symptoms have persisted for six years.

[280] In these circumstances, Ms. Towson’s chances of returning to her pre-accident state, or of becoming employable, are poor. There is room for some hope, through continuing psychotherapy, that she will improve. There is a small chance that she will improve to the degree that she will be employable.

Damages were awarded as follows:

[400] Ms. Towson is entitled to judgment against MPS for $1,186,425, consisting of non-pecuniary damages of $185,000, past wage loss of $66,075, $725,000 for her lost future earning capacity, $4,200 for her lost opportunity to purchase the townhouse, $76,000 for the cost of future care, special damages of $10,000, and $120,150 for management fees. She is also entitled to the applicable pre-judgment interest.

More from BCSC on Rule 37B and ICBC Claims

Written by admin on February 12, 2009. Posted in Civil Procedure, Uncategorized. 50 Comments on More from BCSC on Rule 37B and ICBC Claims

Reasons for judgement were released today (Lumanian v. Sadler) by the BC Supreme Court giving further consideration to Rule 37B in an ICBC claim.
In this case ICBC made a settlement offer before trial. The Plaintiff proceeded to trial and ultimately received judgement below ICBC’s formal offer. In an application for costs the court refused to award ICBC costs or double costs but did deprive the Plaintiff of costs from the date of the offer onward.
The court’s key reasons are set out below.

Costs

[17] ICBC presented a formal offer to settle on May 23, 2008, in the amount of $110,000 “after taking into account Part 7 benefits paid or payable,” and any advances, plus costs and taxable disbursements. There is no disagreement that the plaintiff should get 75% of her costs up to May 23, 2008.

[18] The plaintiff submits she should have 75% of her costs to the end of trial; or in the alternative, that each party should bear its own costs after the date of the offer. The defendant seeks double costs for all steps in the proceeding after May 23, 2008.

[19] There is no dispute that the offer was a valid offer to settle within the terms of Rule 37, notwithstanding an issue that I will address below.

[20] The relevant subsections of Rule 37B for the purposes of this application are:

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[21] Recent decisions on this new Rule are clear that the court’s discretion is now unfettered, but that the underlying purpose of the old rule – encouraging settlement through the use of costs — remains an important objective.

[22] The amount the plaintiff will receive as a result of the judgment is approximately $81,000 before deductions. The settlement offer was $110,000 plus costs. ICBC submits that the result at trial was a significant win for them, and that the plaintiff, having rejected their reasonable offer, assumed the risk of cost ramifications and should pay double costs as a result.

Ought the offer to have been accepted?/Relationship to final judgment

[23] Although Rule 37B(5)(a) and (b) separate the issues of “reasonable acceptance” and “relationship between the offer and the final judgment,” in the circumstances here, where the plaintiff received a substantial award but one which is less than the offer, it is in my view appropriate to consider these factors together. The offer was for $110,000; the award at trial will be between $70,000 and $80,000, depending on deductions, and the plaintiff retains the potential to claim Part 7 benefits up to approximately $138,000.

[24] Argument on this issue proceeded on the basis that the plaintiff would have been required, if she had accepted the offer, to sign a release of her Part 7 benefits. I requested further submissions on that aspect of the argument, based on the decision of the Court of Appeal in Anderson v. Routbard, 2007 BCCA 193, 239 B.C.A.C. 98, in which a similarly worded offer was held to be clear and unambiguous, and was deliberately drafted to ensure that full access to Part 7 benefits remained unimpaired by acceptance of the offer. Although the legislation makes no such differentiation, the Court of Appeal decided in that case that the use of the word “payable” in these offers means only those Part 7 claims that have been submitted and are outstanding at the time of the offer, leaving the rest of the potential Part 7 fund available to be claimed.

[25] Counsel for ICBC now acknowledges that she was in error in submitting that the plaintiff would have been required to sign a release before accepting the offer, although she says it is common practice to settle both claims at once.

[26] Counsel for the plaintiff says it was clear in all negotiations concerning this matter that ICBC would require a release of both the tort and Part 7 claims if the offer were accepted. He does not go on to say that the offer itself is unclear in these circumstances, but says the issue of the reasonableness of rejecting the offer should be analyzed on the basis that such a release would have been required. Counsel for ICBC disputes plaintiff’s counsel’s assertion that there was an understanding that acceptance of the offer was predicated on a release of Part 7 claims.

[27] Although in law the plaintiff would not have been required to sign a release of Part 7 benefits as a term of accepting the offer, it appears from the positions of both counsel during oral argument and even from the subsequent written submissions that in the course of settlement negotiations, they both understood that a release would have been required. To resolve the dispute between counsel as to their respective understandings of whether the provision of a release would also have been a condition of the acceptance of the formal offer to settle would require counsel to provide additional information about their discussions and the settlement process. It might even require counsel to give evidence. This application for costs risks being complicated unproductively by such an examination, which would only add expense to the proceeding.

[28] Since I have found that the amount of future care costs is low, I will proceed on the basis that the issue of Part 7 benefits would not be conclusive either way in the assessment of whether or not the offer ought reasonably to have been accepted.

[29] ICBC says the plaintiff was unreasonable in rejecting the offer. She was obviously able to quantify her claim by the time the offer came in, as she submitted her own offer to settle for $185,000 the day before. ICBC then put in its offer, and also participated in mediation which the plaintiff instigated.

[30] Plaintiff’s counsel says he had medical and other expert reports backing up his client’s position, and to accept the offer would have meant ignoring all their evidence. Counsel for ICBC responds quite properly that a consideration of an offer does not mean that a party must ignore its own evidence; instead it requires an assessment of whether the offer is reasonable and this requires a realistic look at the whole case.

[31] A significant difference between the plaintiff’s position at trial and the amount of the award is in the area of future care costs, and this is reflected in the disparity between the plaintiff’s own offer and the result at trial. A trial judge is required to look into a crystal ball and assess future care costs for the tort claim based on the evidence adduced at trial, and then to look even further and assess future contractual Part 7 claims that might be made by the plaintiff insured against its insurer for the purpose of deductions from the tort award. This is an exercise fraught with uncertainty and potential unfairness, especially for a plaintiff like Ms. Lumanlan, whose future care costs are not clear and are contingent on whether and to what extent she develops arthritis, whether she moves into a house, whether she assumes care of her son (which she now deposes she is attempting to do), and what career she decides to pursue. She is young; her future plans are uncertain. Prior to the accident she had two good hands. Now she does not.

[32] As counsel for the plaintiff pointed out, this type of claim for future care, unlike one where no future care is required, or one where significant future care is required, is difficult to assess.

[33] The court in this tort action was circumscribed by the lack of evidence, and by its duty to be fair to both the plaintiff and the defendant, which prevents speculation unsupported by evidence. In terms of her relationship with her own insurer, however, within the Part 7 context, the plaintiff may well have to make claims in the future under her insurance contract as she matures and gains perspective on her limitations, especially if the court is shown, by the crystallization of events in the future, to have been unfairly limited by the lack of evidence at the tort trial.

[34] The result at trial was not dismissal of the action; Ms. Lumanlan obtained a not insignificant award. She suffered extensive damage to her hand. She was uncomplaining and not particularly adept at putting forth her evidence, and these limitations did not accrue to her advantage, but she did have a serious claim to advance.

[35] As well, an assessment of non-pecuniary damages, as every trial judge knows, is a difficult and somewhat subjective task, as hard as one tries to be consistent with other judgments. A jury verdict can, of course, be even more disparate when compared to assessments by judges. In my view, one should be cautious, with the advantage of hindsight, in equating having guessed wrongly with having been unreasonable in rejecting an offer, especially when the plaintiff receives a substantial award at trial.

[36] In Bailey v. Jang, 2008 BCSC 1372, the plaintiff’s entire claim was dismissed by a jury. Nevertheless, the trial judge held that he was unable to say she had been unreasonable in rejecting the offer. Rule 37B is worded in the affirmative. It is suggested that the court may consider “whether the offer … ought reasonably to have been accepted,” not whether the plaintiff was unreasonable in rejecting it. Nevertheless, given the broad discretion now existing in the section, I am of the view that the important conclusion to be taken from that decision is that this consideration is not one to be done with “hindsight analysis.”

[37] The trial judge in that case held that dismissal of the claim was not determinative of the reasonableness of rejection of the offer. Conversely, however, in my view, the size of the award at trial may offer some assistance in assessing the reasonableness of the plaintiff’s position at the time the offer was made. Here, the award was significant, although not as high as the offer.

[38] Bearing in mind the above considerations and the relationship between the offer and the eventual award at trial, I am unable to say in all these circumstances that the plaintiff, who did not have the benefit of hindsight, ought reasonably to have accepted the offer at the time it was made and prior to the commencement of the trial.

Financial circumstances

[39] ICBC submits that the relative financial circumstances of the parties should be at best a neutral factor. Although they defended the action, it is really the defendant whose finances are relevant. They will pursue their expenses against him.

[40] The plaintiff submits that ICBC was the party who conducted the litigation, and they did so because the defendant breached his insurance by driving dangerously and injuring the plaintiff.

[41] The fact that the defendant will have to pay ICBC back because he breached his contract through conduct which also resulted in the plaintiff’s injury should not be used to her detriment. However, I agree with counsel for the Third Party that it is not reasonable to compare the plaintiff’s financial circumstances to those of ICBC, even where ICBC has entered the action as a Third Party.

[42] The plaintiff deposes that she continues to make the salary she made at trial, that is $8.00 an hour, and she has moved out of her parents’ house to live with a friend temporarily while she asserts custody/access rights to her son, who is now cared for by her mother.

[43] The defendant, 26, is presently unemployed but intends to look for work as a heavy machine operator, which has been his employment since he was 16, when he gets his licence back later in 2009.

[44] There is not a sufficient imbalance in the parties’ relative financial circumstances to make this a significant factor in the present analysis.

Other factors

[45] The plaintiff has presented a draft bill of costs to show what a substantial penalty she should incur if forced to pay double costs to the defendant for steps taken after the offer to settle. It would indeed substantially deplete her award.

[46] In Bailey v. Jang, supra, double costs were awarded to the defendant under the new rule, even though the judge held that the offer was not rejected unreasonably, on the basis that to fail to do so would ignore the deterrent effect of the rule. There, the defendants had made an offer to settle of $35,000 and the jury dismissed the plaintiff’s claim entirely.

[47] Obviously, in the case at bar, the plaintiff’s claim was not dismissed. She received an award that is reasonably close to the offer, until reduced by contributory negligence. Under Rule 37(24)(b), which was in effect when the offer was presented, the defendants would have been entitled to double costs only if the action had been dismissed.

[48] ICBC argues that the plaintiff’s failure to acknowledge any contributory negligence was a barrier to settlement. The plaintiff did indeed pursue that position at trial.

[49] Counsel for the plaintiff takes the position that the mistake regarding the requirement for a release, which he contends was mutual and which counsel for ICBC contends was not, is another factor to consider. It is unfortunate that this dispute has arisen and remains unresolved, but as I stated earlier, the ultimate significance of future care claims is small.

Result on costs

[50] Whether or not the plaintiff was under the impression that she would have had to release future Part 7 benefits to accept the offer, it is apparent that she would have to establish entitlement to some $30,000 to $40,000 worth of Part 7 benefits to attain the amount of the offer, and she would, of course, have received taxable costs and disbursements. This is all without regard to her own legal costs, which obviously increased through the trial.

[51] Nevertheless, I have concluded that the plaintiff’s decision not to accept the offer was reasonable at the time, and although the award at trial was less than the offer, it was still substantial.

[52] Although the use of hindsight is not appropriate in the consideration of the reasonableness of accepting/rejecting the offer, an overall analysis of all of the factors under Rule 37B must be done with the advantage of hindsight, also keeping in mind the court’s unfettered discretion. From that perspective, the plaintiff would have been better off if she had accepted the offer. Her position on some aspects of the trial, such as contributory negligence, appears to have been a stumbling block to settlement.

[53] There should be some consequence in costs as a result, but in my view, it would be unfair and excessively penal to award double costs against the plaintiff, especially where these costs would not have been available under the rule in place when the offer was presented. Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.

[54] In the result, it is appropriate to give the plaintiff 75% of her costs up to the date of the offer and to deprive her of her costs thereafter. Each party will bear their own costs after the date of the offer.

This is the second ICBC Injury Claim that I am aware of that went to trial where ICBC beat their formal offer but were not awarded costs under Rule 37B. It seems that a middle of the road approach is being taken in some circumstances where the ‘punishment’ purpose of Rule 37B is being fulfilled by simply denying the Plaintiff costs. This may be a just result in cases where ICBC’s offer is not much greater than the amount awarded at trial and requiring a plaintiff to pay costs would be prohibitive in relation to the judgement. Interestingly the court here seems to have considered the defendants ‘foolish and reckless behaviour’ in causing the collision as a factor in determining costs consequences.
The judgements applying Rule 37B to ICBC Injury Claims keep coming and I will keep posting these as they come to my attention.

Over $250,000 Awarded for Serious Injuries in ICBC Claim

Written by admin on February 12, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 66 Comments on Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland.
I am still in trial still and only have time for bare bones reporting. In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome. The court’s key analysis of injuries is set out below:

[73] I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74] Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory. There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome. Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75] That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76] Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition. He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period. I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77] Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy. I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy. There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept. In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78] I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome. This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features. None of the pre-accident investigations demonstrated any facet joint issues.

[79] I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur. There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80] That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence. This brings me to the issue of his credibility. In general, I found the plaintiff to be a believable witness. I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81] As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf. Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability. There were no non-organic findings. I found Ms. Fischer to be a compelling witness.

[82] In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83] There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident. Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point. I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future. There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself. As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind. No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D. CONCLUSION

[127] I find the defendant 100% liable for the plaintiff’s damages. Those damages are assessed as follows:

non-pecuniary damages: $70,000.00

past loss of income: $67,500.00

loss of income earning capacity: $120,000.00

future care costs: $17,317.00

special damages: $1,687.46

Total: $276,504.46

Intersections, Left Hand Turns and ICBC Injury Claims

Written by admin on February 5, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on Intersections, Left Hand Turns and ICBC Injury Claims

(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability. You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection. Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver. There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between.
Reasons for judgement were released today dealing with an intersection crash finding a left hand turning vehicle 100% responsible for an intersection crash. In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC. This intersection is controlled by a stop sign. As the Plaintiff was turning left her vehicle was struck by the Defendant’s. Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:

[40] The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic. He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle. She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.

[41] The plaintiff relies on the provisions of s. 175(1) of the Act. She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard. Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.

[42] The plaintiff was the left turning vehicle. It was her obligation, in accordance with s. 174 of the Act, to yield the right of way to the traffic approaching from the opposite direction. The plaintiff did not turn her head to observe whether traffic was approaching. Nor did the plaintiff comply with the provisions of s. 175 of the Act. She did not stop before entering the intersection. The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close. She did not proceed with caution, despite driving slowly.

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.

[46] The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.

[47] The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff. The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic. The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.

[48] Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution. The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution. Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.

[49] Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic. I agree. The plaintiff was driving very slowly and could stop almost immediately. It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path. She did. When the defendant honked, the plaintiff stopped. It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.

[50] The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection. In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.

[51] Therefore, the plaintiff’s claim is dismissed. The defendant shall have his costs.