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$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury.
In this week’s case (Milliken v. Rowe) the 37 year old plaintiff suffered a variety of injuries in a 2007 collision.  The Defendant motorist admitted fault.  The Plaintiff’s most serious injury resulted in chronic shoulder pain the cause of which was described as “one of two things or both in combination which include biceps tendonitis and AC joint antropathy“.
The Plaintiff endured a variety of medical interventions none of which meaningfully resolved her injury.  Surgery was expected to have no better than a 50/50 chance of improving her injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Davies made the following findings:
[65] I find that the totality of the evidence establishes that the neck and shoulder pain as well as the headaches, back pain and right leg pain which Ms. Milliken has suffered since August 2007 were caused by the defendant’s negligence…

[83] Ms. Milliken was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort (primarily at work). The effects of those injuries were largely resolved within about two years.

[84] Ms. Milliken also, however, suffered from right shoulder pain that did not resolve and has now been ongoing for four years. The only potential end in sight for the amelioration of the pain and suffering concerning her right shoulder is invasive surgery with about an even chance of success. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.

[85] I find that the pain Ms. Milliken has endured has been debilitating.

[86] While she has worked through much of it of necessity, the cost to her of doing so has been great.

[87] Her life has become a one-dimensional one in which activities unrelated to work have largely had to be put aside. She no longer has the stamina or physical ability to care for her home as she previously did and has become socially reclusive because of that and her constant tiredness.

[88] Ms. Milliken is no longer able to play with her grandchildren as she once did due to pain and discomfort in her shoulder. She no longer participates in making crafts or enjoying recreational pursuits with her family.

[89] Her injuries have also exacerbated the physical challenges which she now faces in caring for her husband and that prevented her from taking on some of the work around the home and yard for which he was previously responsible…

[91] Ms. Milliken’s suffering will also not end with this litigation.

[92] At minimum she must endure complex shoulder surgery and a lengthy period of rehabilitation in which she will continue to be unable to enjoy life as she once did. Her likely future enjoyment of life is also compromised by the prospect that the surgery may be wholly or partially unsuccessful.

[93] The totality of the evidence satisfies me that there is no question that Ms. Milliken will continue to suffer pain and suffering as well as loss of her enjoyment of life at least until after rehabilitation from surgery to her shoulder.

[94] There is also a substantial likelihood that she will suffer ongoing pain and suffering and loss of enjoyment into the future after the shoulder surgery…

[105] I award Ms. Milliken non-pecuniary damages of $85,000.

Personal Injury Claims Are Not "Measured by the Number of Doctors Seen"

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


The value of a personal injury case has little to do with the number of doctor visits a Plaintiff has.  I’ve discussed this topic previously.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, further addressing this matter.
In today’s case, (Tarzwell v. Ewashina) the Plaintiff was injured in a 2007 motor vehicle collision.  She suffered from chronic soft tissue injuries affecting her trapezius muscles and low back.   The injuries were on-going at the time of trial and the Court accepted that the symptoms would linger into the future.  Non-Pecuniary damages of $60,000 were awarded.  Prior to arriving at this assessment Mr. Justice Dley provided the following comments making it clear that the number of doctor visits does not measure the quantum of a personal injury claim:
[67] If a plaintiff’s claim was to be measured by the number of doctors seen or by the number of medical consultations attended, then that would unjustly marginalize victims such as Ms. Tarzwell. She has chosen not to burden the medical system with unnecessary visits to physicians who would give her no further advice than what she had already been provided and followed. She should not be penalized for that.
This case is also worth reviewing for the Court’s comments to the lawyers involved in the litigation for their efficient use of Court time.  Illustrating that meaningful claims can be litigated with little Court time Mr. Justice Dley provided the following compliments:

[5] This case was presented with uncompromising efficiency. Counsel were meticulous in focusing on those matters that were actually in dispute.

[6] The evidence was concluded in a day along with an additional half day for argument.

[7] The medical evidence consisted of two reports. There was no wasted expense by tendering marginal evidence that would have done little to assist the Court.

[8] A case that takes little time to present does not mean that damages are nominal. It is the quality and substance of the evidence that matters. Style should never trump substance.

[9] If an example of proportionality needed a model case, counsel have succeeded here in illustrating how litigation can be conducted.

More on the DME Prohibition of Bolstering Previous Opinions

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

While Plaintiff’s in personal injury lawsuits sometimes have to be subjected to multiple defence medical exams (DME) one well-settled principle is that subsequent exams to bolster a previous defence opinion are not permitted.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this principle in action.
In last week’s case (Dillon v. Montgomery) the Plaintiff was involved in two motor vehicle collisions.  He sued for damages with both claims set for trial at the same time.   In the course of the lawsuit he agreed to attend a defence medical exam with an orthopaedic surgeon.  The examination included a neurological assessment.
The Defendant then applied for a second exam, this time with a neurologist, arguing this was necessary “to ensure reasonable equality between the parties in the preparation of a case for trial“.  Master Bouck disagreed finding a further exam was not necessary in the circumstances and amounted to an effort to “bolster” the previous opinion.  In dismissing the application the Court provided the following reasons:

[17] Dr. McGraw reviews the findings contained in the neurological consult report in his own report. In additon, Dr. McGraw conducted a neurological examination.

[18] This expert’s opinion is that the plaintiff’s “back pain is of muscular origin and not related to intervertebral disc disease, arthritis of the apophyseal joints, or nerve root irritation”…

[28] In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.

[29] First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.

[30] Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.

[31] Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.

For more on this topic you can click here to access my archived posts summarizing the judicial application of Rule 7-6(2).

ICBC Not Limited to 30 Days in Participating in "Uninsured Vehicle" Actions

Written by admin on . Posted in Uncategorized. 56 Comments on ICBC Not Limited to 30 Days in Participating in "Uninsured Vehicle" Actions

Reasons for judgement were released last week by the BC Court of Appeal discussing the purpose of (and ICBC’s obligations under) the “uninsured vehicle” provisions of BC’s Insurance (Vehicle) Act.
Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.   When a claimant sues an uninsured motorist and is in a default judgement position they cannot access this pool of money from ICBC unless the corporation is given 30 days notice of this development to allow ICBC to take control of the defence of the litigation.
In last week’s case (Shapiro v. Dailey) the BC Court of Appeal had the opportunity to discuss this time limit and ICBC’s ability to intervene in a lawsuit even beyond this time.
In Shaprio the Plaintiff was injured in a 2005 collision.  She sued for damages.  In the course of the lawsuit ICBC took the position that the Defendant was insured but was in breach of insurance.  ICBC defended the lawsuit as a statutory Third Party.  At trial the Plaintiff was awarded $1.4 million in damages.
ICBC appealed and in doing so they changed their view of the Defendant’s situation now claiming the Defendant was an uninsured motorist.  The Plaintiff objected arguing ICBC could not take this position now as it was beyond the 30 day limit set out in section 20(6) of the Insurance (Vehicle) Act.   The Court of Appeal disagreed and found ICBC could advance this position even beyond the 30 day limit.  In reaching this result Madam Justice Smith provided the following comments on the purpose of the uninsured vehicle provisions:

[18] …In my view s. 20(6) speaks to the obligations of claimants before they can compel ICBC to compensate them under this section. Specifically, s. 20(6) requires a claimant to notify ICBC where a defendant has defaulted on his obligations (by failing to appear to the action after being served, consenting to a judgment against him, or failing to take a necessary step in the action that would permit a claimant to take default proceedings) before it can demand compensation from ICBC under this provision. The purpose of the section is to give ICBC 30 days following notice of the defendant’s default in which to intervene in order to rectify the defendant’s failure or action, and thereby protect its interests. If ICBC fails to intervene within that period, the claimant may then enforce payment under this section.

[19] As I read the provisions, whether or not ICBC intervenes in an action pursuant to s. 20, it has 30 days from notice of a defendant’s default before it can be compelled to compensate a plaintiff on a judgment. Section 20(6) does not limit ICBC to 30 days in which to intervene in an action. The 30-day period refers to the period of time after notice of a defendant’s default in which ICBC can intervene, if it so chooses, before it can be compelled to make payment to the plaintiff. Nowhere does the Act specify when ICBC can or must intervene. In short, these provisions address the issue of when a plaintiff can compel payment from ICBC upon the default of a defendant. The policy behind them is to give ICBC time to intervene in the action before it may be compelled to compensate a plaintiff under this provision…

[27] In the result, I am of the view that ss. 20(6) and (7) of the Act do not preclude ICBC from appearing to an action under those provisions after it has previously intervened in the action at trial under s. 21 of the Act. Accordingly, I would dismiss the application.

Motorist 75% At Fault for Striking Cyclist on Sidewalk

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

Although Section 183 of the Motor Vehicle Act prohibits a cyclist from riding on a sidewalk, motorists need to keep a lookout for this common breach of the law.  Failure to do so can result in fault in a motor vehicle collision as was demonstrated in reasons for judgement released yesterday by the BC Supreme Court, Vancouver Registry.
In yesterday’s case (Deol v. Veach) the Plaintiff cyclist was travelling Southbound on a sidewalk on Scott Road in Surrey, BC.  This was against the flow of traffic for his side of the street.  At the same time the Defendant motorist was exiting a Safeway parking lot attempting to turn right onto Scott Road.

The Defendant failed to see the Plaintiff and a collision occurred.  Both parties were found at fault with the Court placing the majority of the blame on the motorist for failing to keep a proper lookout.  In reaching this finding Madam Justice Dardi provided the following reasons:

[25] A critical and uncontroverted fact in this case is that the defendant did not see the plaintiff when he looked to the right as he was approaching the Exitway. On his own admission his unobstructed view of the Sidewalk to the north was for some 200 feet. Moreover, after the defendant stopped just east of the unmarked crosswalk at the Exitway, and prior to executing his right turn, he did not look to the right again. The defendant was in clear violation of s. 144 of the MVA, which prohibits driving without due care and attention and without reasonable consideration for others. Although the plaintiff was riding in the direction facing traffic, the Exitway, which was bordered by a sidewalk on both sides, was precisely where a motorist should reasonably have expected to encounter another user of the road. Unlike the plaintiff in Ivanoff v. Bensmiller, 2002 BCCA 173, the plaintiff was not in an unexpected location. The defendant was well aware that both pedestrians and cyclists used the sidewalks on Scott Road.

[26] I find on the totality of the evidence that had the defendant acted in a reasonably prudent manner he would have seen the plaintiff. The plaintiff was there to be seen by the defendant. Had the defendant maintained a proper look-out there is an irresistible inference that the collision would have been avoided. I therefore conclude that the defendant failed to meet the standard of care of an ordinarily prudent driver required in the circumstances, and that his failure to do so was a cause of the accident. In the result I find the defendant negligent…

[36] I consider the defendant’s failure to keep a proper lookout, his failure to observe the plaintiff who was there to be seen, and his execution of a right turn while focussing to his left, more blameworthy than the lapse of care of the plaintiff, who, after stopping at the Exitway and observing the defendant’s vehicle come to a stop, failed to make eye contact with the defendant prior to proceeding through the Exitway.

[37] In the end I find that the defendant was substantially but not entirely to blame for the accident and therefore I attribute fault to both parties. I apportion liability 75% to the defendant and 25% to the plaintiff.

1/3 Damage Reduction For Plaintiff's "Failure to Mitigate"

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.
In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision.  The Plaintiff suffered from chronic pre-existing pain.  The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury.   Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’.  In doing so the Court provided the following reasons:

[42] In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed, [2001] S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.  Red Deer College v. Michaels(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.  In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

[43] In his very thorough report, Dr. Armstrong gave treatment recommendations.  Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court.  Those recommendations included (1) a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2) minimizing passive therapies; (3) supervised stretching and posture improvement under the guidance of a physiotherapist; (4) a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5) counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7) time off work to pursue rehabilitation.

[44] The plaintiff has largely not followed these recommendations.  There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance.  She did not embark on a progressive program to strengthen core muscles.  There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management.  Hsu did not take time off work to pursue rehabilitation.  Hsu also continued with, and seeks compensation for, continuing passive therapies.

[45] For example, Hsu claims as special damages acupuncture treatments covering a period from March 2007 to June 5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed “rehabilitation treatments” ($760); and various prescription medications ($194.72).

[46] Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

[47] The importance of carrying out those recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

For more recent BC case summaries addressing failure to mitigate you can click here to access my archived posts and here for more recent case summaries addressing pain and suffering awards for sacroiliac joint injuries.

Foreign Insurers Entitled to Rely on s. 103 Limitation Defence; Adding Defendant Beyond Limitation Discussed

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 51 Comments on Foreign Insurers Entitled to Rely on s. 103 Limitation Defence; Adding Defendant Beyond Limitation Discussed


Reasons for judgement were released today by the BC Court of Appeal addressing the ability of foreign insurers to rely on the s.103 limitation defence for no-fault accident benefits.
By way of background, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.
The Court of Appeal confirmed PAU signatories can take advantage of the limitation contained in s. 103 of BC’s Insurance (Vehicle) Regulation. The Court further discussed the common sense approach BC law imposes in adding a defendant to an existing lawsuit despite the availability of a limitation defence.
In today’s case (Moldovan v . Republic Western Insurance Company) the Plaintiff was injured while travelling as a passenger in a rented U-Haul vehicle.  The vehicle was insured by the Republic Western Insurance Company.  The Plaintiff sought no fault benefits and sued ICBC.  When he realized he sued the wrong insurer the limitation period under s.103 of the Insurance (Vehicle) Regulation had passed.
He sought to add RWIC to the existing lawsuit which the Court of Appeal ultimately permitted.  In doing so the Court explained that while a foreign insurer PAU signatory can take advantage of the s. 103 limitation period the Court retains a discretion to add a Defendant to an existing lawsuit even beyond the limitation period due to section 4(1)(d) of BC’s Limitation Act and further due to the former Rule 15(5)(a) which is reproduced as the new Supreme Court Rule 6-2(7).  The Court provided the following reasons:
[17] As will be seen below, I am of the opinion that while s. 103 would normally be available to RWIC to assert in defence of the plaintiff’s claim, s. 4(1)(d) of the Limitation Act nevertheless does permit the court to join RWIC as an additional defendant. I also conclude that RWIC should be so joined in the circumstances of this case…
[25] I conclude that the chambers judge erred in declining to apply s. 103 on the basis that the PAU does not constitute an agreement to incorporate into RWIC’s insurance policy all the terms that are required to be incorporated in a policy issued by ICBC.  The fact that s. 103 was not incorporated into U-Haul’s rental contract did not make it somehow inapplicable to Mr. Moldovan, any more than the silence of a British Columbia policy on the question of limitation would make it inapplicable to a claim against ICBC.  As a person claiming benefits under Part 7 in a British Columbia action, the plaintiff is subject to the statutory limitation in s. 103.  No breach of the principle of extraterritoriality arises…

[27] I set out below the material provisions of s. 4 again for convenience:

4(1)      If an action to which this or any other Act applies has been commenced, the lapse of time limited for bringing an action is no bar to

(a)        proceedings by counterclaim, including the adding of a new party as a defendant by counterclaim,

(b)        third party proceedings,

(c)        claims by way of set off, or

(d)        adding or substituting a new party as plaintiff or defendant,

under any applicable law, with respect to any claims relating to or connected with the subject matter of the original action…

[35] The circumstances surrounding the plaintiff’s claim, which need not be rehearsed here, were reviewed by the Master.  Most important, he found that the plaintiff’s delay “resulted not from any tactical decision designed to gain an advantage for the plaintiff but from solicitor inadvertence or an honest error in judgment.”  As against this, RWIC has not alleged any particular prejudice. A helpful summary of the law on the weighing of relative prejudice in this context is found in the analysis of Martinson, J. in Wadsworth v. McLeod, supra:

Regard must be had for the presence or absences of prejudice. There must be a balancing of prejudices: Teal at p. 299. Prejudice can be assumed, or actual.

Prejudice means prejudice associated with the delay itself. The fact that an opposing party is affected negatively by such an amendment does not mean that he is prejudiced. The prejudice must affect the ability to respond to the amended claim: Bel Mar Developments Inc. v. North Shore Credit Union, [2001] B.C.J. No. 512, 2001 BCSC 388 at para. 9.

I agree with the following comments of Master Bolton in Takenaka v. Stanley, [2000] B.C.J. No. 288, 2000 BCSC 242 at paras. 41 and 42:

Putting aside any issues of actual prejudice in addition to the prejudice resulting from the loss of the cause of action or of the limitation defence, I am satisfied that the prejudice to a plaintiff in the former event will usually be greater than the prejudice to a defendant in the latter. In the former case the plaintiff loses the opportunity to ask a court to consider a claim that the defendant has done something the law of the land considers to be actionable. In the latter, the defendant loses a windfall opportunity to avoid the issue altogether. Their respective situations may be precisely balanced in purposely financial terms, but not, I conclude, as a matter of justice. A right to seek justice cannot fairly be equated with a right to cut short the search without an answer.

I believe that his analysis provides a firmer foundation for the conclusion I reached at paragraph 68 of the Mah decision ([2000] B.C.J. No. 44), that if all else is equal the balance of prejudice should be resolved in favour of the plaintiff.”  [At paras. 22-4.]

[36] In the circumstances of this case, it seems to me that the balance of prejudice is clearly in the plaintiff’s favour, and that it is just and convenient that RWIC was added as a defendant notwithstanding the time limitation in s. 103 of the Regulation.  I would therefore dismiss the appeal and confirm the order of the chambers judge below, although for different reasons than those she expressed.

BC Court of Appeal Rejects ICBC's Argument for "Expanded" Hit and Run Victim Obligations

Written by admin on . Posted in Uncategorized. 70 Comments on BC Court of Appeal Rejects ICBC's Argument for "Expanded" Hit and Run Victim Obligations


Reasons for judgement were released this week by the BC Court of Appeal rejecting ICBC’s arguments trying to impose “expanded” requirements for hit and run victims to be compensated for their injuries.
By way of background individuals injured by unidentified motorists can sue ICBC directly for compensation but there are statutory requirements that need to be complied with to succeed with such a claim.  The most litigated issue in these claims is whether the Plaintiff took “all reasonable efforts” to identify the at fault motorist as required by section 24(5) of the Insurance (Vehicle) Act.
In this week’s case (Nicholls v. ICBC) Plaintiff was involved in a single vehicle motorcycle accident in 2005.  He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“.  He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages.  ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill.  Mr. Justice Saunders disagreed and dismissed ICBC’s application.
ICBC Appealed arguing the trial judge applied the wrong test and that motorists must meet “an expanded test of reasonableness” in attempting to identify the unknown motorist.  The BC Court of Appeal rejected this argument finding no expanded obligation exists.  The Court provided the following reasons:

[29] The main proposition from Leggett is that the test of reasonableness in s. 24(5) has a subjective component. In the words of Taylor J.A.:

[11]      I do not think the words “not ascertainable” should be strictly interpreted, so as to mean “could not possibly have been ascertained.” I think they are to be interpreted with reference to subs. (5) so as to mean “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them.”

[12]      The test seems to me to be subjective in the sense that the claimant must know that the vehicle has been in an accident and must have been in such a position and condition that it would be reasonable for the claimant to discover and record the appropriate information. But the claimant cannot be heard to say: “I acted reasonably in not taking the trouble to find out.”

[Emphasis added.]

[30] This is confirmed by this Court’s decision in Etter v. Insurance Corporation of British Columbia, 1999 BCCA 281, 126 B.C.A.C. 144, where Madam Justice Ryan, for the Court, stated at para. 5, that the test in s. 24(5) of the Act was summarized in para. 11 of Leggett.

[31] Thus, the only qualification on the requirement of “all reasonable efforts” in s. 24(5), is the subjective aspect of the test that requires the “position and condition” of the plaintiff to be considered in determining what efforts are reasonable in the circumstances. In all cases, the single standard to be met is one of reasonableness.

[32] In sum, I am not persuaded that the chambers judge erred in describing the test in s. 24(5) as one of reasonableness. In citing the statutory provision he was alive to the requirement on the respondent to demonstrate that “all reasonable efforts” had been made in the circumstances to ascertain the identity of the unknown tortfeasor. He then determined whether, in the circumstances of this case, considering the respondent’s subjective circumstances at the time of the accident, and based on a cost-benefit analysis of his efforts, or lack thereof, after the accident, the respondent had met the standard required by the provision. In my view, in the circumstances of this case, he did not err in adopting this approach to the issue.

ICBC's LVI Defence Rejected Yet Again

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

I’ve written about this topic too many times to give a lengthy introduction other than to say it is clear that the “Low Velocity Impact” Defence is not a legal principle.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, yet again demonstrating this.
In today’s case (Cariglino v. Okuda) the Plaintiff was involved in a 2008 collision.  She was a passenger in a vehicle that was rear-ended.  Fault was admitted.  She suffered various soft tissue injuries.  The vehicle sustained $724 in damage and the Defendant advanced the classic LVI defence arguing that this little damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”.
Mr. Justice McKinnon rejected this argument and in doing so provided the following comments:

[33] No medical opinions were proffered by the defence, rather defence submitted that the plaintiff’s evidence is “unreliable” as she downplays the role of significant family stressors in her life, fixating on the collision as the sole cause of all of her problems, both before and after the collision. Curiously, defence accepts that the plaintiff is credible but not reliable. That seems to me to be a distinction without a difference.

[34] I found the plaintiff to be generally credible and, for the most part, a reliable historian. Certainly she had stresses in her life that created difficulties but she was able to manage these much more easily before the collision. A defendant takes a plaintiff as he finds her. Here the defendant has caused injury to the plaintiff who was in a somewhat fragile state, given her many family issues.

[35] The defendant contends that the very minor nature of the collision would render “improbable” the nature and extent of the injuries the plaintiff contends she suffers. I was not provided with opinion evidence to support that contention and thus am unable to accept the bald proposition that minor damage equals minor injury.

The Court accepted that the Plaintiff suffered various soft tissue injuries which largely improved in the first year following the crash and with further therapy should fully recover.  Non-Pecuniary damages were assessed at $35,000.

$40,000 Non-Pecuniary Assessment for Aggravation of Fibromyalgia; Rule 15 Soft Cap Exceeded

Written by admin on . Posted in BCSC Civil Rule 15, ICBC Fibromyalgia Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing fibromyalgia.
In this week’s case (Paradis v. Gill) the Plaintiff was injured in a 2007 collision.  Fault was admitted.  Despite expressing some “reservations in accepting the entirety of the evidence put forth in the plaintiff’s case” Mr. Justice Masuhara accepted that the collision caused an aggravation of pre-existing fibromyalgia which was on-going by the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:
[73] Applying the principles of causation as set out in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336, as well as recognizing the comment that courts should exercise caution when there is little objective evidence of continuing complaints of pain persisting beyond what the defence asserts is the normal recovery period, I find that the Accident aggravated Ms. Paradis’ condition of fibromyalgia.  My view is that Ms. Paradis’ pain is predominantly in the mild to moderate range (though it can increase) and relates to her lower back; that she suffered from back and neck pain as well as headaches prior to the Accident but not as great; that she is able to stand far longer than she says; that she has the capacity to lift more than she asserts; and can engage in more activities than the physical capacity concludes.  The plaintiff also has full range of motion at her neck, shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet.  A significant part of her physical restrictions are not substantially related to aggravation from the Accident but rather to the unrepaired injury to her left knee, the osteoarthritis found in her knees, as well as her weight.  However, I find that she has suffered some loss of capacity…

[83] Ms. Paradis had a history of back, neck and knee pain, and headaches prior to the Accident.  Also, the medical evidence indicates that Ms. Paradis has full range of motion in all areas of her body, from her neck to her feet.

[84] The authorities referred to by the plaintiff in support of its position on quantum largely do not deal with persons with a pre-existing condition of pain comparable to the plaintiff.  The cases also deal with persons who enjoyed activities that were more significantly impacted by their injuries than in the instant case.  In my view, the injuries in the cases submitted by the defendant are somewhat more comparable to the plaintiff.  Also, I accept that Ms. Paradis’ level of pain and disability can be significantly controlled with proper management.  The defence’s position that some recognition for the plaintiff not taking reasonable steps to reduce her weight is addressed later under mitigation.

[85] In all of the circumstances, I assess general damages as $40,000.

This case also appears to be one of the first cases to be prosecuted under the Fast Track with damages exceeding the soft cap.  Despite the cap set out in Rule 15-1(1)(a), Rule 15-1(3) states that “nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of  $100,000“.  This week’s case was apparently prosecuted under the fast track (as is evidenced by the Court’s costs award set out in paragraph 119) and had global damages of $116,238 assessed.