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$70,000 Non-Pecuniary Assessment For Chronic "Moderate" Soft Tissue Injuries

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

Adding to this site’s archives of soft tissue injury non-pecuniary awards, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic ‘moderate’ low back injury.
In last week’s case (Schafer v. Whitely) the plaintiff was involved in a 2010 collision.  Although liability was disputed the defendant was found fully at fault at trial.  The plaintiff suffered various injuries which improved by the time of trial with the exception of a low back injury of moderate severity which continued to pose problems.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:
[179]     There is no dispute about the nature of the injuries sustained by the plaintiff as a result of the accident. She suffered minor injuries to her left knee and to her face, and experienced some headaches. These injuries, and the headaches, had resolved within a month or so after the accident.
[180]     I find that the plaintiff sustained injury to the soft tissues of the musculoskeletal structures of her neck and lower back. The injury to these structures has caused pain in the plaintiff’s neck and low back. By the time of trial, the plaintiff’s neck pain symptoms had resolved, but she continues to experience pain in her low back on an intermittent basis.
[181]     I find that the impact of the collision was violent and that the forces exerted on the plaintiff’s body were capable of causing, and did cause significant injury. Although the medical experts did not offer an opinion as to the severity of the injury, I find that the injury was at least moderate in severity…
[197]     In my opinion, having regard to the facts I have found, a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount under this head of loss.

Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

Written by admin on . Posted in ICBC Wage Loss. 1 Comment on Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

The law in BC has long recognized that a Plaintiff can seek damages to reimburse banked sick leave benefits which are depleted due to an injury caused throught the negligence of others. Despite this litigants occasionally still argue that the law does not allow such recovery as it amounts to ‘double recovery’.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of this defence argument.
In this week’s case (Chingcuangco v. Herback) the Plaintiff was injured in a 2008 collison.  She missed time from work and used up over $7,000 of banked sick time.  In confirming that the Plaintiff can recover this loss Mr. Justice Weatherill provided the following reasons:
[209]     During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits.  She seeks damages to reflect the depletion of those benefits.
[210]     The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09.
[211]     The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time.
[212]     This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48.  In that case, Madam Justice Ballance provided a thorough and helpful analysis:…
[213]     I agree with that analysis and I adopt it in its entirety.  Here, the plaintiff exhausted her accumulated sick leave.  She also used up several of her vacation days.  She has had illnesses unrelated to the accident that have resulted in her being unable to work.  She is likely to have them in the future.  Her plan is to stay and make a career at CRA. 
[214]     I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09.  There will be no deduction for income tax.
I have canvassed this topic before and you can click here to access my archived posts addressing the law of recovery of sick time benefits.

Law of Spoliation of Evidence Discussed by BC Court of Appeal

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 5 Comments on Law of Spoliation of Evidence Discussed by BC Court of Appeal


Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision.  The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision.  The Plaintiff argued that the vehicle was prematurely destroyed and an adverse inference should be drawn that no mechanical failure took place.  The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence:
[27]         Finally, I turn to the plaintiff’s argument that ICBC’s (apparent) destruction of the Jeep “effectively destroyed” her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court’s inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the “real party in interest”, such that the vehicle was destroyed by a person who was in effect the defendant in this litigation.
[28]         I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.)
[29]         On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v. Canada (1896), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red Cross Society (1998) 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and the discussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that the evidence would be required for litigation purposes’.)  As stated in McDougall v. Black & Decker, “When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.”  (Para. 24).
[30]         The Court observed in McDougall that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms. Chow-Hidasi. (See McDougall, para. 25, British Columbia Law Institute, Report on Spoliation of Evidence (2004), at 10-20.)
[31]         In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.

Producing False Witness To Collision Leads to $200,000 in Financial Consequences

Written by admin on . Posted in Uncategorized. 102 Comments on Producing False Witness To Collision Leads to $200,000 in Financial Consequences

In an illustration of BC’s motor vehicle insurance system having real teeth to punish fraudulent acts, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering substantial damages against a couple who produced a false witness to ICBC following a motor vehicle collision.
In this week’s case (ICBC v. Panag) the Defendant was involved in a 2006 collision.  The parties had competing versions of how the collision occurred.  The Defendant produced a witness in support of her claim.  After investigation ICBC determined this individual in fact did not witness the collision and was known to the Defendant.
ICBC paid out over $188,000 in claims following the crash.  ICBC held the Defendant in breach of insurance and sued to recover this money on the basis that the Defendant attempted to commit insurance fraud.  Mr. Justice Grauer agreed and ordered repayment of these damages along with punitive damages.  In reaching this decision the Court provided the following reasons:
64]         In these circumstances I am satisfied that the Panags and Harinder Grewal were in fact involved in a conspiracy to put forward Mr. Grewal to ICBC as a witness to the collision knowing that he had not in fact witnessed it, and with the intention that he provide ICBC with evidence that he did not have and which they knew to be untrue.  The facts, in my view, cannot fairly admit of any other inference.  Speculation is not required…
[67]         It follows that both Mr. and Mrs. Panag participated in a conspiracy to deceive ICBC about both how the accident happened and the status of Mr. Grewal as a witness to the accident.  They clearly intended ICBC to rely upon their representations, and ICBC as a result was left scrambling for a considerable period of time as it embarked upon an extensive investigation in an attempt to straighten out what would otherwise have been and should have been a straightforward matter.  This amounts to fraud.  See, for instance, ICBC v. Nisbet, 2009 BCSC 1570, at para. 85.
[68]         In the result, the Panags have forfeited their right to coverage under s. 19(1)(d) of the IMVA as well as s. 19(1)(e), and ICBC is entitled to recover against both of them.  Whether directly as a consequence of the Panags’ conspiracy to commit fraud or as a result of the application of the principles of unjust enrichment, this would include the moneys paid out to Mr. Panag for his material damage claim and to Mrs. Panag for her Part VII claim.  The total amount awarded to ICBC in this regard is $188,722.86, which I am satisfied accurately represents what ICBC paid out, to which I add pre-judgment interest of $8,460.21.  I have deducted $305.06 from the interest claimed because of the absence of evidence concerning the date when expenses related to surveillance were incurred…
[70]         In providing ICBC with willfully false statements and in conspiring to commit fraud, the Panags undoubtedly engaged in conduct that was reprehensible.  In the particular circumstances of this case, however, I note that the consequences of their actions have exposed them to statutory liability far beyond the actual financial consequences of their actions.  Had they succeeded in their deception, they would have saved a mere $801 plus whatever might have been gained through a potential personal injury claim.  Now they must pay over $188,000 plus interest…

ICBC Projects Almost $1 Billion in Net Income From 2012-2015: Government Plans $539 Million Profit Scoop

Written by admin on . Posted in Uncategorized. 169 Comments on ICBC Projects Almost $1 Billion in Net Income From 2012-2015: Government Plans $539 Million Profit Scoop

The BC Government’s 2013-2014 Budget has just been released.  Included in the documents is ICBC’s Service Plan for 2013-2015 which reports robust net profit expectations.  Below I reproduce the Crown Corporation’s Summary Financial Outlook.  It is noteworthy that this current projection is up over 200 Million from ICBC Projections for 2012-2014 released last year.
The Government also reports a planned $539 Million profit scoop for ‘core government services’ with the Budget and Fiscal Plan reporting as follows:
Insurance Corporation of British Columbia – ICBC’s net income outlook is forecast at
$257 million in 2013, $222 million in 2014 and $205 million in 2015. The outlook
assumes average annual growth of 1.5 per cent in the number of insured vehicles and
a 3.6 per cent average annual increase in claims costs. Over the fiscal plan period,
ICBC is forecast to remit $539 million of its excess Optional insurance capital to the
consolidated revenue fund to support core government services.
 

Low Velocity Impact – Not the Law but a Factor That Can Be Looked At

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage.  The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was involved in a minor rear-end collision   Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back.  The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.
The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision.  In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence:
[206]     I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.
[207]     Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33.
[208]     In Miller v. Darwel, 2005 BCSC 759, the court stated:
[9]        On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4:
I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has not application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
[10]      As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.
[11]      I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:
Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.
[209]     More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.”
[210]     I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.

Courts Must Not Shy Away From Waiving Court Hearing Fees for Those "In Need"

Written by admin on . Posted in Uncategorized.

Last year Mr. Justice McEwan blasted BC’s Attorney General stating that ‘some things cannot be for sale’ and struck down Provincially imposed Court ‘hearing fees’.  This decision has now been overturned by the Court of Appeal who have upheld BC’s Court hearing fees but held that in order to survive constitutional challenge the Judicial right to waive these fees much be applied to all ‘in need‘.
In last week’s decision (Vilardell v. Dunham) the Court of Appeal provided the following feedback in upholding BC’s Court hearing fees:
 [4]             In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice.  The power is found in an enlarged interpretation of the indigency provision…
[31]         I am reluctant to take the course suggested by the respondents.  Cost recovery has been a legitimate government objective for centuries and our Constitution assigns administration of the superior courts to the province.  It is a drastic step to strike down an otherwise valid enactment for want of a saving provision that falls short of the mark.  A more surgical response is to remedy the deficiency by reading in the under-inclusive indigency provision in the Rules to include people who are “in need”: see Schachter v. Canada, [1992] 2 S.C.R. 679 at 718.  “In need” recognizes the fact that some litigants, while not destitute or impoverished, are still in need of relief or assistance in order to have their case heard before a superior court…
[35]         To the extent that the hearing fees have the potential to interfere with the core judicial function of running a trial, which I think they do, the courts should respond to the interference.  Judges must not shy away from dealing with such incursions.  The remedy I propose in this case is a measured response to the problem. ..
[41]         Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken.  The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”.  The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees.  Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.
 

Facebook Photos Assist in Challenging Injury Claim

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized.

In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.
In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision.  Liability was admitted by the defendant.  The Plaintiff advanced a claim alleging longstanding and disabling physical injuries.  The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim.  Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence:
 [107]     She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time…
[331]     …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage…
[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.
[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.

Rule 15 Costs Apply to Fast Track Settlement Agreement

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, confirming that a settlement agreement made in a Rule 15 action for an amount “plus costs” contemplates costs capped under the fast track rule.
In this week’s case (Wan v. Smith Estate) the Plaintiff was prosecuting an injury claim under Rule 15.  As trial neared the Plaintiff accepted a defence settlement offer of $60,000 “plus costs and disbursements” .  The Plaintiff then sought Tarriff costs of over $17,000 as opposed to the capped pre-trial costs of $6,500 under Rule 15.  Mr. Justice Punnett held that Rule 15 costs applied to the settlement agreement.  In coming to this conclusion the Court provided the following reasons:
[13]         It is not disputed that the fast track rule governs.  The plaintiff asks the court to exercise its discretion under the fast track rule.  Her counsel refers to the wording in 15-1(15) “unless the court otherwise orders” in support.  The defendant submits that the reference to “the court” in that section is a reference to the trial court not this Court in chambers.  That is that cost awards are within the discretion of the trial court.  Further they submit that the offer and its acceptance were clear and the costs referenced in the settlement are to be awarded pursuant to Rule 15-1.
[14]         The difficulty with the plaintiff’s submission is counsel’s letter confirming settlement responds to the defendant’s offer of costs.  That offer was clearly for costs under the fast track rule.  In my view the plaintiff cannot now seek to redefine what was meant by “costs”.  It is inappropriate for the court to now vary the agreed upon terms of settlement.

Expert Witness and Plaintiff Preparation Time Recoverable In Bill of Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, addressing costs for witness preparation.
In last week’s case (Carson v. Henyecz) the Plaintiff was injured in a motor vehicle collision.  She succeed at both a liability trial and subsequently at a quantum assessment.  The Plaintiff was awarded costs.  With the exception of experts, the Plaintiff was the only witness at trial.  The Plaintiff sought costs for interviewing witnesses for both the Plaintiff and expert witnesses.  ICBC argued this was not recoverable as item 18 of the Tarriff does not include parties nor experts.  Master McDiarmid disagreed and allowed costs for these items.  In doing so the Court provided the following reasons:
[24]         The most significant dispute between counsel was with respect to item 18. The plaintiff submitted that the process associated with interviewing witnesses included interviewing those witnesses with respect to their attendance at trial. The plaintiff submitted that this included interviewing the plaintiff, who was of course a witness on her own behalf in both trials. It was also submitted by plaintiff’s counsel that item 18 would also permit units to be awarded for interviewing the experts with respect to their attendance at trial…
[30]         Forms 20 and 21, the case plan proposal and case plan order, have separate sections for expert witnesses and contain provisions for providing a witness list. Form 41, the trial brief, has a heading entitled “Witnesses to be Called On,” which requires the parties to provide the names and addresses of the witnesses the filing party intends to call at trial, together with an estimate for the time each witness will need for giving direct evidence. There is no differentiation on a trial brief between witnesses who are parties, witnesses who are representatives of corporate parties, expert witnesses, or other witnesses.
[31]         From this I conclude that a party can claim under item 18 with respect to all witnesses for all parties, including in this case the plaintiff and including expert witnesses.