Skip to main content

The Other Side of the "Low Velocity Impact" Coin

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.


I’ve written many times about the so-called “low velocity impact” defence where Defendants argue that a crash with little vehicle damage can create only minimal (or perhaps no) injuries and compensation should be accordingly modest.  These arguments have been soundly defeated many times in Court.
The other side of the equation, however, holds equally true.  Just because a collision results in severe vehicle damage does not mean that a severe injury occurred.  It is the severity of injury, not the severity of impact, that really matters.  Reasons for judgement were released this week by the BC Supreme Court addressing this.
In this week’s case (Currie v. McKinnon) the Plaintiff was involved in a fairly significant collision.  He was injured in the crash.  In support of his submissions for damages the Plaintiff stressed that this was “a very serious accident” involving “high speed”.  The Court noted that these facts are of little consequence.  In addressing the ‘serious accident’ submissions Madam Justice Adair provided the following comments:

[67] There is no dispute that Mr. Currie suffered some injuries in the accident.  Mr. Currie’s position is that he continues as of trial to suffer the effects of those injuries.  The defendants’ position is that the injuries suffered in the accident were relatively minor and had resolved within a short period.  The defendants say that, to the extent Mr. Currie continues to experience symptoms – particularly neck and back pain – as of trial, those symptoms are unrelated to the accident and are not caused by injuries suffered in the accident.

[68] Mr. Dahlgren, on behalf of Mr. Currie, argues that I should conclude Mr. Currie was seriously injured because he was involved in a “very serious accident,” involving a “high speed” collision and that resulted in substantial property damage.  However, these facts are not necessarily connected in any logical way to the nature and extent of Mr. Currie’s injuries, as Thackray J. (as he then was) pointed out (in a slightly different context) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, at para. 5:

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.  The presence and extent of injuries are to be determined on the basis of evidence given in court.  Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

The Court went on to conclude that the Plaintiff suffered soft tissue injuries which “substantially recovered” in one year and awarded non-pecuniary damages of $22,000.

Court Orders Particulars of Special Damages to Be Disclosed at Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 5, Civil Procedure, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to provide particulars of claimed special damages.
In this week’s case (Amezcua v. Norlander) the Plaintiff was injured in two collisions.  The Defendants applied, at a Case Planning Conference, that the Plaintiff produce particulars of special damages.  In agreeing that this was an appropriate order Master Baker provided the following reasons:

[5] …In particular leading authorities on pleading confirm that it is appropriate to expect a party to plead details of special damages and, if they are not given, to demand particulars.  The author of Odgers On High Court Pleading and Practice cites, as an illustration, Hayward v. Pullinger & Partners Ltd.:

But when any special damage is claimed, without sufficient detail, particulars will be ordered of the alleged damage…

More recently and locally the authors of Conduct of Civil Litigation in British Columbia comment:

Special damages must explicitly be claimed and proved.

And further, in relation to past wage loss:

…but the weight of the authority treats these as special damages which therefore must be specifically pleaded; the defendant is also entitled to particulars.

I cite this latter quote not in respect of wage losses per se, but for the implicit assumption that a defendant is entitled to particulars of special damages.

[6] I cannot see, then, why a party should not be required to particularize his or her special damages to date.  The same, of course, cannot be said for general damages, but the defence is not asking for that.  The plaintiff will therefore give particulars of her special damages to date.

Welcome (Again!) Georgia Straight Readers – More on Bill 52 and ICBC Insurance Premiums

Written by admin on . Posted in BC Injury Claims Media Archives, Tort Reform, Uncategorized.


Last year I had the pleasure of being interviewed by the Georgia Straight with respect to ICBC’s obligation to fund massage therapy under their Part 7 Benefits plan.  This week I had a further interview with reporter Carlito Pablo addressing the BC Government’s Bill 52 which seeks to overhaul BC’s traffic ticketing dispute system.  You can view his article here.
For those of you visiting this site looking for further information on this topic you can click here to read my previous article where I share my concerns of the Government proposal which strips your right to a meaningful hearing when disputing a traffic violation “notice” and the increased insurance premiums that can accompany conviction.

BC Limitation Act Overhauled – Bill 34 Receives Royal Assent

Written by admin on . Posted in Uncategorized.


Bill 34 received Royal Assent this week.  This legislation replaces BC’s Limitation Act which governs the time periods within which lawsuits must be brought.  It is expected to come into force within the upcoming year.
You can click here to read the Government’s press release relating to Bill 34 and here to review my initial comments when this legislation was first proposed.

Cyclist Assessed 30% Fault For Passing Slow Moving Vehicle on the Right

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

(Update July 8, 2014 – the below decision was overturned on Appeal with the BC Court of Appeal finding there was no evidence to prove negligence on the motorists part)
Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, dealing with the issue of fault following a collision caused by an unidentified motorist.
In last week’s case (Orminston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.
The motorist left the scene and remained unidentified. The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.
Ultimately Mr. Justice McKinnon found both parties at fault. In assessing 30% of the blame to the Plaintiff the Court provided the following comments:

[26]Section 158(1) limits the ability of a “motorist” to pass on the right. It is permissible only in three specific instances, none of which existed at bar. Even when permitted, the move cannot be made if it would be “unsafe” to do so and if the movement caused the vehicle to “drive off the roadway”. “Roadway” is defined in section 119(1) and does not include the shoulder. Section 158(2) stipulates that a motorist must not overtake or pass if the movement cannot be made safely, or if it involves driving off the roadway. The latter, says defence, makes it clear that the plaintiff was not entitled to use the shoulder, at any point, or for any purpose, in attempting to pass. ..

[36]This unidentified vehicle was not near any intersection nor any roadway that might lead a cyclist to believe there was a possibility of a turn into his line of travel. It was descending a steep hill but for unknown reasons came to almost a complete stop at the centre of the road. In my view the facts at bar are not at all similar to those cited in Janzen…

[41]I accept that this unidentified driver was almost stopped at the centre line when he/she made a sudden veering motion that took the vehicle over the fog line onto the shoulder. Such an action, at the very least, constitutes driving without reasonable consideration for others. Clearly Mr. Ormiston also bears some responsibility for this collision, given the provisions of the Motor Vehicle Act to which I have referred. It remains to ascertain the extent to which each is liable.

[42]In Salaam v. Abramovic, 2010 BCCA 212, the British Columbia Court of Appeal offered the following comment about assessing statutory obligations in respect to liability:

[18] While the statutory provisions provide guidelines for assessing fault in motor vehicle accident cases, they do not, alone, provide a complete legal framework

[21] …In the end, a court must determine whether, and to what extent, each of the players in an accident met their common law duties of care to other users of the road. In making that determination, a court will be informed by the rules of the road, but those rules do not eliminate the need to consider the reasonableness of the actions of the parties. This is both because the rules of the road cannot comprehensively cover all possible scenarios, and because users of the road are expected to exercise reasonable care, even when others have failed to respect their right of way. While s. 175 of the Motor Vehicle Act and other rules of the road are important in determining whether the standard of care was met, they are not the exclusive measures of that standard.

[43]In Shinkaruk v. Crouch, 2011 BCSC 1762, Saunders J. followed these general statements of principle, noting:

[18] A breach of the Motor Vehicle Act is not in itself determinative of liability; all of the surrounding circumstances may be taken into account.

[44]In my respectful view, given the provisions of the Negligence Act, R.S.B.C. 1996, c. 333 and the facts that I have found, the defendants bear the greater liability. I find them 70% responsible for the losses claimed. The plaintiff will be assessed 30%.

CPP Children's Benefits Not Deductible From ICBC UMP Compensation

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 52 Comments on CPP Children's Benefits Not Deductible From ICBC UMP Compensation


While ICBC can deduct Canada Pension Plan disability benefits from an UMP Claim, can the same be done for additional “Children’s Benefits” paid by the CPP?   Arbitrator Yule addressed this question in an UMP Arbitration Decision that was recently provided to me.  In short Arbitrator Yule held that Children’s Benefits are non-deductible.
In the unpublished decision (H v. ICBC) the Plaintiff was awarded damages following a jury trial.  The Plaintiff applied for payment under his own UMP Coverage as the at-fault motorist was underinsured.  While the parties largely agreed on the deductibility of past CPP benefits from ICBC’s payment obligations, they could not agree on whether the additional CPP funds the Plaintiff received as “Children’s Benefits” were deductible.  In finding that they were not Arbitrator Yule provided the following reasons:
37.  In one sense it may well be thought that it must be a “benefit” to the Claimant to receive money (which must be paid to him in these circumstances) under a statutory scheme (the CPP) which imposes no constraint on his use of the monies.  On the other hand, it seems to me the underlying rationale for the payment of the disabled cobtributor’s child’s benefit is the expectation that the money will be used by the recipient in a general way in the partial discharge of the recipient’s legal duty to support and maintain the children who are entitled to the benefits.  In this sense, I think the benefit or right is that of the child and not of the parent or custodial person.  It is significant that the benefits payable under Division A of Part II of the CPP, one is described as “a disability pension” (what the Claimant receives on account of his own disability) and another – the benefit at issue – is described as “a disabled contributor’s child’s benefit” [emphasis added].  It is difficult to transform what the statutory CPP scheme describes as “a child’s benefit” into the parent’s/custodial person’s benefit for the purpose of s. 148.1(1)(i).  At least here where the monies are payable under another statutory scheme, I think “benefit: or “right” in s. (f.2) should be guided by the description of the benefitin the statory scheme, and where the statutory scheme itself defines the benefit as the child’s beneift, it shoudl be considered to be the child’s benefit.  This interpretation also  maintains consistency with the construction of ss. (f.2) where I have concluded that the entitlement to the child’s benefit is that of the child.
38.  Accordingly I conclude that the children’s benefits paid to the Claimant are not deductible from his UMP Compensation.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Witness Excluded For Failing to Be Listed in Trial Management Conference Brief

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized. 145 Comments on Witness Excluded For Failing to Be Listed in Trial Management Conference Brief


One of the changes in the new BC Supreme Court Civil Rules is the requirement for parties to produce a list of witnesses in their trial brief to be exchanged 7 days prior to a Trial Management Conference.
In addition to this Rule 12-5(28) prohibits a party from calling a witness who was not listed “unless the court orders otherwise“.  The first reasons for judgement that I’m aware of addressing this subrule were recently shared with me.
In the unreported case (Topkins v. Bruce) the Defendant attempted to call an unlisted witness at trial.  Mr. Justice Curtis refused to allow the witness to testify providing the following reasons:
[4] …The new Rules say that you must give a list of your witnesses no later than 28 days before the trial, or the Trial Management Conference.  There is a Trial Management Brief, which happebd to be late filed; that is not a big deal, a late filing, but it just adds to the approach, I guess.  Although the defendant knew that Mr. Simm existed, the Trial Management Brief says “lay witness number one” and “lay witness number two”.  This not only does not conform with the Rules, but if permitted would deliberately frustrate them.
[5]  The purpose of knowing who the witnesses are is so that the other side can prepare their case, and the Judge, if they want, can order a statement concerning the witnesses, as well as estimate the proper lenght of trial.
[6]  At the Trial Management Conference, September 30th, a direction was given that the witness list will be provided at a subsequent date.  The name of the witness was not provided until after that date.  The explanation is taht the address for the witness was not discovered until later.
[7]  In the circumstances of this case, I am not prepared to allow Mr. Simm to testify, because one, I do not think his evidence is going to be particularly relevant in the circumstances of the case; two, his name was not disclosed, although it was known at the Trial Management Conference, and three, he name was not disclosed, although  known, on the date that the Trial Management Conference Judge had directed that his name be given.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$60,000 Non-Pecuniary Assessment For Onset of Symptoms in Pre-Existing Degenerative Disc Disease

Written by admin on . Posted in ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.

As previously discussed, a common occurrence following a collision is the onset of symptoms in a pre-existing, but otherwise asymptomatic, conditions.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, highlighting and assessing damages for such a scenario.
In this week’s case (Zawislak v. Karbovanec) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the opposing motorist.  The Plaintiff had pre-existing, asymptomatic, degenerative disc disease in his spine.  The collision rendered this condition symptomatic resulting in on-going chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:

[31] Dr. Cameron, a neurologist, examined Ms. Zawislak on August 24, 2011. He found signs of muscle spasm in her shoulder muscles and neck muscles, left side predominant. In Dr. Cameron’s opinion, Ms. Zawislak suffered a soft tissue injury and musculoskeletal injuries to her neck, shoulders and upper back in the motor vehicle accident. Ms. Zawislak has developed headaches associated with the neck pain as a result of the musculoskeletal injuries to her neck and shoulders that she sustained in the accident. In Dr. Cameron’s opinion, Ms. Zawislak remains partially disabled because of the ongoing upper back pain, headaches and neck pain which had resulted from the soft tissue injuries and musculoskeletal injuries in the form of a whiplash she sustained in the motor vehicle accidents.

[32] According to Dr. Cameron, 80% of the individuals over the age of 40 have degenerative disc disease and most of those individuals go around without pain until a trauma, such as a motor vehicle accident, renders their disc disease symptomatic. Trauma makes the asymptomatic condition symptomatic. Ms. Zawislak’s neck was partially degenerated and, in his opinion, her ongoing pain in her neck, with the attendant headaches, and her back are likely caused by the motor vehicle accident…

[44] In my view, the evidence establishes that the probable cause of Ms. Zawislak’s headaches, neck pain, upper back and shoulder pain is the motor vehicle accident exacerbating the pre?existing asymptomatic degenerative disc disease. While there was some risk of her degenerative disc disease becoming symptomatic, the medical evidence was that it was likely it would not become symptomatic absent a trauma. In my opinion, this case falls within the “thin skull” rule as opposed to the “crumbling skull” rule enunciated in Athey, and the defendants are liable for Ms. Zawislak’s injuries even though they may be more severe than expected due to her pre?existing condition…

[49] Having considered the extent of the injuries, the fact that the symptoms are ongoing three years after the accident with very little improvement, that the prognosis for full recovery is guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non?pecuniary damages is $60,000.

Government Giving ICBC Power To Increase Premiums Based on "Driver Assessment Point System"

Written by admin on . Posted in Tort Reform, Uncategorized. 54 Comments on Government Giving ICBC Power To Increase Premiums Based on "Driver Assessment Point System"

Remember the political fallout several months back when ICBC proposed to increase insurance premiums based on a single driving violation?  The Government called ICBC’s proposal “unfair” and “not appropriate”.  Something must have changed since then because the Government has now introduced a Bill to give ICBC the power to levy “additional premiums” that ICBC considers appropriate based on driving point penalties.
In the whirlwind of new Government legislation recently introduced, Bill 52 received second reading this week.  This legislation seeks to drastically overhaul BC’s motor vehicle offense ticketing dispute system by taking these matters away from our Courts and instead creating administrative tribunals to process disputes.
In addition to the above, the Bill seeks to amend Section 34 of the Insurance (Vehicle) Act as follows:

13 Section 34 (1.1) is amended

(a) by adding the following paragraphs:

(d.1) adopt or establish a driver assessment point system classifying drivers according to the number, nature and kind of contraventions of driving enactments under the Motor Vehicle Act;

(d.2) in respect of a driver assessment point system adopted or established in accordance with paragraph (d.1), adopting or establishing a method by which point penalties may be converted or compared to driver assessment points for the purposes of assessing and levying basic or additional premiums under the plan against drivers at the times and under the terms and conditions the corporation considers appropriate; , and

(b) by repealing paragraph (e) and substituting the following:

(e) according to any system of classifying drivers adopted under paragraph (c), a point penalty system adopted or established under paragraph (d) or a driver assessment point system adopted or established under paragraph (d.1), assess and levy basic or additional premiums under the plan against drivers at the times and under the terms and conditions the corporation considers appropriate.

In short, this law will give ICBC the power to increase premiums  “under the terms and conditions (ICBC) considers appropriate“.  This legislation leaves no checks and balances to ensure that what the Government recently called unfair does not become the law of the land.

While the Bill’s goal of freeing up police and judicial resources is worthwhile, the devil’s in the details.  As a practical matter this is what the Bill will accomplish:

1.  If a “driving enforcement officer” (ie – a police officer) doesn’t like your driving you receive a “driving notice” (ie – a ticket)

2.  You lose your right to judicial challenge, instead you are now called a “disputant” and must place your challenge with a newly minted “Driving Notice Review Board“.  Of note, you won’t have the right to cross-examine your accuser at your “resolution conference“.

3.  If/when you lose your dispute before the Board you are issued a “monetary penalty“

4.  If you cant afford to pay the penalty ICBC can refuse to issue you a licence

5.  Last but not least ICBC will issue you “point penalties” and you will then pay higher insurance premiums based on whatever system ICBC develops.

This overhaul will likely bring constitutional scrutiny since the Canadian Charter of Rights and Freedoms is No Trifling Matter.  As MLA Sather quipped on the floor on the Legislature this week “I wasn’t aware that ICBC had that kind of power”.