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No Adverse Inference Where Witness in Question Called by Opposing Party

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived cases dealing with the ‘adverse inference‘ principle in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this principle when a Plaintiff failed to call a treating physician.
In last week’s case (Frech v. Lanlgey) the Plaintiff was injured in two collisions which caused soft tissue injuries which lingered to the time of trial.  Global damages of just over $35,000 were awarded.  In the course of the litigation the Plaintiff obtained a report from a treating physician.  The Plaintiff did not rely on the report at trial nor did the Plaintiff call the physician as a witness.  The defence did call the physician allowing the Plaintiff to have the benefit of cross-examination.  The defence argued that an adverse inference should be drawn in these circumstances.  Mr. Justice Truscott disagreed and provided the following reasons:

[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.

[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.

[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.

[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.

[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.

[247] Therefore I decline to draw any adverse inference.

Judicial Analysis Required for Each Item Sought In Future Care Claims

Written by admin on . Posted in Cost of Future Care Cases.


Reasons for judgement were released last week by the BC Court of Appeal discussing future care awards and the appropriate analysis that trial judges should undertake when considering such awards.
In last week’s case (Gignac v. ICBC) the Plaintiff was injured in a 2004 collision.  The Plaintiff’s injuries were expected to cause on-going difficulties.  At trial the Plaintiff sought $115,975 for future care needs.  This claim was awarded in full.  ICBC appealed arguing that the evidence did not support some of the claims made and that the trial judge did not apply the proper analysis.  The BC Court of Appeal agreed and reduced the award by almost $45,000.  In doing so the BC Court of Appeal provided the following reasons:

[29] The purpose of the award for costs of future care is to restore, as best as possible with a monetary award, the injured person to the position he would have been in had the accident not occurred.

[30] The award is “based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: (Milina  v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted inAberdeen v. Zanatta, 2008 BCCA 420 at para. 41.

[31] ICBC says that the trial judge did not examine each request and determine if there was an evidentiary link between the medical assessment and the care recommended by the occupational therapist and rehabilitation consultant. As Garson J.A. said in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39:

I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Aberdeen at paras. 43, 63.

[32] The failure of the trial judge to perform an analysis of each item sought by the plaintiff with respect to whether there was “some evidentiary link between the physician’s assessment of pain, disability and recommended treatment and the care recommended by a qualified health professional” was a legal error. The trial judge has since retired, and therefore it is not appropriate to refer the matter back to the trial court as the costs to the parties would be significant. Instead, this Court can make the assessment.

$100,000 Non-Pecuniary Assessment for C6-C7 Disc Herniation Requiring Surgery

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

Following a fairly unique collision involving a downed utility pole, reasons for judgement were published last week by the BC Supreme Court, Kamloops Registry, assessing damages for a C5-C6 disc injury requiring surgical intervention.

In last week’s case (Baxter v. Morrison) the Defendant tractor trailer operator struck overhead power lines with his vehicle causing the power pole attached to the wires to break into pieces falling on the plaintiff’s vehicle causing a severe neck injury.
Although fault was disputed Mr. Justice Ehrcke found the defendant fully liable for the incident.  The plaintiff’s neck injury required surgery which largely, but not entirely, improved his symptoms leaving the plaintiff with some permanent symptoms.  In assessing non-pecuniary damages at $100,000 the Court provided the following reasons:

[55] Here, the plaintiff, who was 47 at the time of the accident and who enjoyed an active lifestyle both at home and at work, suffered injuries to his neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain was caused by a disc herniation resulting from the accident. He performed an operation on his neck to remove the disc, and this relieved about 70% of the pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter has a “mild degree of permanent disability as a result of his ongoing neck pain.” This discomfort continues to affect Mr. Baxter both at home and at work.

[56] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Taking account of all of the factors mentioned in Stapley v. Hejslet, I would assess general damages in this case at $100,000.

A Judicial Warning: Saving a "Modest Amount" in Insurance Premiums Can Create "Dire Financial Consequences"

Written by admin on . Posted in Uncategorized.

I’ve previously discussed how saving a few hundred bucks could cost you a few hundred thousand by misrepresenting the principle vehicle operator when purchasing ICBC insurance.  Today reasons for judgement were released by the BC Supreme Court, New Westminster Registry, demonstrating breach of insurance consequences in action.
In today’s case (Lau v. ICBC) the Plaintiff was involved in a 2009 collision.  At the time he was driving a two month old Subaru Impreza which was purchased for $41,287.  The collision resulted in the vehicle being a total loss.
ICBC found the Plaintiff fully liable for the collision although the Plaintiff was disputing this finding.  ICBC further denied coverage to the Plaintiff (meaning for starters they would not pay to replace the vehicle nor indemnify the Plaintiff for any claims brought by the occupants in the other vehicle) arguing that the vehicle owner made a ‘willfully false statement’ when the vehicle was purchased by not accurately declaring who the principle operator was going to be.
Mr. Justice Verhoeven agreed that the vehicle owner “knowingly misrepresented the identity of the vehicle’s intended principle operator” and therefore that the insurance coverage was forfeited.  The Court provided the following valuable comments:

[5] For the reasons that follow, I conclude with considerable reluctance that Yu Jung Lau knowingly misrepresented the identity of the vehicle’s intended principal operator when he applied for the insurance, and therefore the insurance coverage was forfeited.

[6] The reason I reach the conclusion I do with reluctance is that in my view, the misrepresentation was made in order to save a relatively modest amount of insurance premium, and almost certainly without any real appreciation that forfeiture of the insurance could result, with dire financial consequences. The result is harsh for the plaintiffs.

[7] However, ICBC does not have to prove that the plaintiffs were aware of the consequences of a misrepresentation concerning the insurance.  A contract of insurance is one of utmost good faith, and one cannot commit frauds or make wilfully false statements about the subject-matter of the claim without risking the loss of the right to indemnity: Inland Kenworth Ltd. v. Commonwealth Insurance Company (1990), 48 B.C.L.R. (2d) 305 (C.A.) at 310.

[8] Judging by the number of similar cases that have come before the courts, it seems likely the plaintiffs’ lack of understanding of the consequences of a false declaration as to the vehicle’s intended principal operator is shared with many members of the public. The result in this case should serve as a warning.

Show Me the Money 6 – 2011 ICBC Lawyer and Doctor Billings Released

Written by admin on . Posted in Uncategorized.

It’s that time of year again.  ICBC has now released their annual Statements and Schedules of Financial Information for 2011.  This is my 6th year highlighting this information.  You can access the following previous years information at the following links:
2010
2009
2008
2007
As previously discussed, this report highlights the billings of Suppliers of Goods and Services which includes doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends you to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
ICBC routinely uses a handful of doctors to perform these independent exams.  A quick glance reveals that some physicians bill well into the six digit range annually for these services.
Another provider of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract(known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

$80,000 Non-Pecuniary Assessment for Chronic Myogenic Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Adding to this site’s database of caselaw addressing non-pecuniary damages for TOS, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In this week’s case (Small v. Upshaw) the Plaintiff  was involved in three collisions; the first in 2006, the second in 2008 and the last in 2010.  The Defendants admitted liability for these and it was agreed to have damages addressed globally.
The plaintiff suffered various soft tissue injuries and a left sided myogenic Thoracic Outlet Syndrome.
(Image by  Nicholas Zarosky via Wikimedia)
His limitations continued to the time of trial and were expected to be permanent.  The plaintiff worked as a journeyman auto mechanic and although he could continue to work with his injuries these limited his capacity.  In assessing non-pecuniary damages at $80,000 Mr. Justice Rogers provided the following comments:
[21] The three medical professionals who testified at the trial, Drs. Scheffler, Vallentyne and Coghlan, all opined that the plaintiff’s present symptoms arise from and were caused by the accidents. They all felt that the plaintiff’s symptoms are likely to be permanent….

23] I was impressed by the plaintiff. I found him to be a credible and reliable witness. The few discrepancies between his evidence at trial and in discovery were not, in my view, significant and did not impair his testimony. I accept that the plaintiff’s left arm was intermittently symptomatic shortly after the accident. I find that his main complaints then, though, had to do with his neck and back. Those pains were constant and debilitating. His arm symptoms appeared from time to time and were never genuinely disabling. For those reasons, the plaintiff’s left arm complaints merited and received less attention during the months following the second accident.

[24] It follows that I find that the second accident did cause the plaintiff to suffer left-sided myogenic thoracic outlet syndrome. This condition is self-limiting – if the plaintiff keeps the amount of reaching he does to a minimum, the less he will be bothered by its symptoms. He is bothered by the symptoms once or twice a week…

[34] As noted above, the plaintiff impressed me as a credible and reliable witness. I find that the plaintiff is plagued daily by pains in his neck, left shoulder, and upper and mid-back, and that from time to time his left arm develops a feeling of numbness and tingling. When those arm symptoms occur, they last until the following morning. All of these symptoms were caused by the motor vehicle accidents for which the defendants have admitted liability. Of the three accidents, the second caused the plaintiff the most harm.

[35] The plaintiff’s pain symptoms are not intermittent. He does not have “good days and bad days”. His symptoms are aggravated by activity, particularly by working with his hands and arms over his head, while stooping over an engine bay, or pretzeled beneath a dashboard. By the end of a typical workday, the plaintiff is stiff and sore. He has little or no energy for recreation or socializing. He takes pain relief and muscle relaxing medication daily. These facts distinguish the plaintiff’s case from the circumstances of the cases cited by the defendant and in which the court made general damage awards of less than $50,000.

[36] In my view, the plaintiff’s circumstances merit an award for non-pecuniary loss of $80,000.

Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 65 Comments on Double Costs Awarded to Plaintiff After Besting Formal Settlement Offer

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, addressing costs consequences following a trial where a Plaintiff bested his formal settlement offer.
In the recent case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured after a RCMP officer ran a red light resulting in a collision.  The officer was found negligent at trial and damages of just over $330,000 were assessed.
Prior to trial the Plaintiff provided a formal settlement offer of $175,000.  The Plaintiff sought double costs for besting the offer.  In finding it appropriate to award double costs Madam Justice Gropper provided the following reasons:

Consideration of the factors

Was the offer one that ought reasonably to have been accepted?

[6] At the time the offer was made, the parties were approximately two weeks to trial. They had exchanged all the documents, the examinations for discoveries were complete and all the medical reports were exchanged.

[7] The defendants’ response is that the case reflected complex causation issues involving indivisible injuries.

[8] I consider this factor to favour the plaintiff’s position. While causation was a significant issue, it was addressed by the plaintiff’s physicians in their medical legal reports. The defendants did not tender any medical legal reports. The defendants had the plaintiff’s medical legal reports at the time the offer was made and was therefore in a position to evaluate the offer in spite of its consistent position in respect of causation.

Relationship of Offer and Judgment

[9] The plaintiff asserts that the offer of November 15, 2011 contained a meaningful element of compromise. He also argues that the assessment of damages significantly exceeded the compromise of settlement which the plaintiff offered two weeks before the trial. The defendants state no position in respect of this factor. This factor supports the plaintiff’s position.

Relative financial circumstances

[10] This factor is self evident: the plaintiff is an individual and the defendants have significant resources available. This factor supports the plaintiff’s position.

Other factors

[11] The plaintiff raises the defendants’ contact, particularly in regard to the question of liability.

[12] While I have found that the defendants were entirely liable for the accident, I do not consider that this constitutes a basis for awarding double costs to the plaintiff.

[13] Based upon the application of the factors referred to in Rule 9-1(6), I find that the plaintiff is entitled to his costs at Scale B up to November 14, 2011, and double costs thereafter. The plaintiff is entitled to his assessable disbursements. The double costs rule does not apply to disbursements.

ICBC Review Report Released – ICBC Rate Hike Approved

Written by admin on . Posted in Tort Reform, Uncategorized.


Earlier this year the BC Government transferred responsibility of ICBC to BC’s Minister of Finance, Kevin Falcon.
Today, Kevin Falcon outlined proposed overhauls at ICBC.  You can find the Government News Release here.  The full ICBC Review Report can be accessed here.  In the wake of this announcement it was also revealed that ICBC CEO Jon Schubert will be stepping down as of November 15.  In conjunction with the Government Press Release ICBC has provided the following public response.
And last but not least, today the BC Utilities Commission released their report approving ICBC’s requested Rate Hike.

Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 45 Comments on Litigation Privilege Claim Fails Due to the 'Two Hats' of ICBC

(Update February 12, 2015 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
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I previously discussed the Two Hats of ICBC and suggested fixing the conflict of interest this creates.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, demonstrating this conflict of interest in action in the context of a litigation privilege claim.
In the recent case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  He was insured with ICBC and met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.  Mr. Justice Groves agreed and ordered the report to be disclosed.  The Court provided the following reasons:
[29] It is clear there were two distinct purposes for this investigative report.  That is conceded by the Defendant.  The question then becomes, was the dominant purpose litigation?  And has the defendant met the onus of satisfying the court that in fact the dominant purpose was litigation?…
[49]  I am also of the view that the defendant’s claim for privilege must fail, in regards to a dominant purpose analysis.  Again, assuming that we’ve gotten over the litigation privilege hurdle, here this investigation, by the adjuster’s own admission, had more than one purpose.  As such, the onus of claiming and eliminating the competing purpose rests on the defendant.
[50]  I agree with the submission of the plaintiff that, during the entirety of the evidence of the adjuster, both in affidavit and during his cross-examination on his affidavit, there is a strong suggestion, a clear suggestion, that the purpsoe of this investigative report was a true dual purpose report.
[51]  Again, the information obtained by the adjuster, at his interview with the plaintiff on November 14, 2006 was information necessary to potentially adjudicate a tort claim, and potentially adjudicate a Part 7 claim.  In discovery, the adjuster confirmed that he had retained the investigator during the meeting with the plaintiff, that “the intention is to get information that is going to contradict what I was told in the initial appointment”.
[52]  What he was told in his initial appointment related to both Part 7 claims as well as tort claims.  The adjuster seemed to draw no distinction in the investigation, as to which of those two claims is to be covered or emphasized.  As such, the onus of showing that the dominant purpose of the report was litigation cannot be met, on the evidence.
[53]  Based on what I have said, I will allow the appeal of the master in regards to the report of the investigator, dated December 15, 2006 and order that it be disclosed.
To my understanding this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

ICBC Hit and Run Claims, Reasonable Efforts and Estoppel

Written by admin on . Posted in Uncategorized. 68 Comments on ICBC Hit and Run Claims, Reasonable Efforts and Estoppel

Further to my previous posts discussing legal obligations when seeking compensation following an unidentified motorist collision in BC, interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, suggesting that in the right circumstances estoppel could be used to overcome a ‘failure to take reasonable efforts to identify the Defendant’ defence after a collision has been reported to ICBC.
In this week’s case (Springer v. Kee) the Plaintiff was injured in a 2008 collision.  The at fault driver fled the scene before the plaintiff could identify them.  The plaintiff reported the claim to ICBC and to the police but did not take any steps after this to try and identify the at fault motorist.
The plaintiff brought an action seeking compensation from ICBC pursuant to Section 24 of the Insurance (Vehicle) Act.  ICBC brought an application to dismiss the lawsuit arguing the plaintiff failed to take all reasonable steps to identify the motorist after reporting the claim.  Mr. Justice Armstrong agreed and dismissed the claim.  Before doing so, however, the Court criticized ICBC’s actions and suggested that if estoppel was plead the outcome may have been different.  The Court provided the following reasons:

[92] I accept the view that ICBC was not obliged to warn the plaintiff of his ongoing obligations in the immediate aftermath of his reporting the accident to ICBC; ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.

[93] In my view, although not obliged to advise people of their obligations under s. 24(5), ICBC ought to recognize the risks that laypeople will rely on remarks made by adjusters suggesting settlements can be expected without warning that the claim will be denied if s. 24(5) is not complied with. Regrettably, I also note that the “Helping You with Your Hit and Run Claim” pamphlet published by ICBC that was given to the plaintiff by the adjuster does not mention the implications of s. 24(5) of the Act.

[94] Counsel for the plaintiff mentioned the concept of waiver, but did not argue this as a case of estoppel and the pleadings do not advance any claim against ICBC except as nominal defendant.

[95] Section 24(5) does not permit me to consider the actions of ICBC in the assessment of the plaintiff’s obligations under the Act. That may be the subject of a waiver or estoppel, which is outside of the scope of this application.

[96] For the reasons given by Barrow J. in Tessier, I am unable to conclude that the actions of ICBC excuse Mr. Springer’s inaction in the weeks following the accident. Therefore, I would dismiss the argument of the plaintiff in this case; I cannot grant judgment because he did not take all reasonable steps to ascertain the identity of the unknown driver as required under s. 24(5) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.