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My 2011 Clawbies Nominations

Written by admin on . Posted in Uncategorized. 46 Comments on My 2011 Clawbies Nominations


The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs.  The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.
In 2009 I was fortunate enough to be awarded a Clawbie for best Canadian Practitioner’s Blog.  Last year I was proud to make the finalists short list and am thankful to all those who have nominated this Blog.
Before making my nominations I’d like to point out that that although Steve Matthews’ Law Firm Web Strategy Blog and Jordan Furlong’s Law 21 are not eligible for a nomination due to their affiliation with Stem Legal, both are worth mentioning for their influence in the Canadian Legal blogging landscape.  Also the juggernaut of the Canadian Blawgosphere (Slaw) has now been retired from eligibility giving the rest of us humble bloggers a fighting chance to win the recently minted “Fodden Award for Best Canadian Law Blog“.
With those courtesies out of the way here are my 2011 Clawbie Endorsements:
First I’d like to once again nominate David Bilinsky whose Legal Management Blog keeps an eye on all things tech and ethics and provides helpful practice management tips for legal professionals.  David is one of the first Canadian lawyers to Blog and he has maintained a quality publication year after year.  In addition to this I can cite him as a key influence responsible for this blog being created in the first place.
Next I’d like to give another nod to Antonin Pribetic who is undoubtedly Canada’s most outspoken legal blogger (the Trial Warrior Blog).  His blog goes hand in hand with his Twitter profile where he candidly shares his views on all things legal and proudly spews venom at the self-coined “flawgosphere”.
Lastly I’d like to nominate Dan Michaluk’s “All About Information” for keeping the rest of us current on information and privacy legal developments across Canada.  This year Dan made a seamless transition transforming the blog from an individual endeavor to a group effort without compromising the quality of the publication.
There are many other worthwhile Canadian legal blogs worth mentioning (and you can click here check out Steve Matthews ever growing list of these) but in keeping with the rules I’m keeping my nominations down to the cap of three.

Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages and costs for modest injuries following a motor vehicle collision.  Although the claim was straight-forward and damages were within the jurisdiction of the Small Claims Court, the Plaintiff was awarded costs with Mr. Justice Burnyeat finding that the Supreme Court’s summary trial process is a reasonable alternative to the backlog litigants face in Small Claims Court.
In today’s case (Parmar v. Lahay) the Plaintiff sustained a modest whiplash injury as a result of motor vehicle collision.  ICBC ran the “Low Velocity Impact” defence arguing no compensation should be awarded.  The trial proceeded summarily and took less than one day.  The Plaintiff’s evidence was accepted and non-pecuniary damages of $12,000 were awarded.
The Court went on to award costs despite the modest quantum.  In doing so Mr. Justice Burnyeat provided the following reasons:

[9] I cannot reach the conclusion that the legal or factual complexity of the case, the need for discovery of documents and examination for discovery, and the need for a judgment enforceable outside of British Columbia are applicable reasons why this action was commenced in the Supreme Court of British Columbia rather than in Provincial Court.  However, I am satisfied that the summary trial procedure available in the Supreme Court and the availability of costs makes the Supreme Court a preferable and justified forum for this Action.

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court.  In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.

[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court.  In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.  (at para. 14)

[12] I also adopt the statement of Humphries J. in Kanani, supra:

… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).

[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal.  This must be contrasted with the institutional defendant and its unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 9?7 of the Supreme Court Civil Rules is appropriate.  In the case at bar, the application has taken approximately one hour.

[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.

ICBC Proposed Insurance Rate Hike: The Straight Goods on Why Its "Needed"

Written by admin on . Posted in Tort Reform, Uncategorized. 57 Comments on ICBC Proposed Insurance Rate Hike: The Straight Goods on Why Its "Needed"


Earlier this week ICBC released their 3rd Quarter financial results with an accompanying press release stating that they will be seeking a modest increase in basic insurance coverage rates to counteract the consequences of “rising bodily injury costs and falling investment income“.
ICBC is looking at an annual rate increase of about $30.  Yesterday ICBC’s CEO wrote an Open Letter To Customers stating that “Today, however, we are facing new pressures. Like other companies and individuals, the challenging world financial markets are negatively affecting us. While our investment returns continue to perform well against the markets, our investment income has dropped by $38 million compared to last year. Our best estimate is that our investment income at year-end will be $90 million less than in 2010.”
While it is true that ICBC’s investment income is down and claims  payouts fluctuate year to year, those reasons don’t explain why a rate hike is needed.  Historically ICBC is well managed and profitable, I’ve discussed this in the past.  They have generated hundreds of millions in net revenues year over year with the current premiums in place.   ICBC did what any financially responsible insurer does with such profits and built up substantial reserves to act as a safety net for leaner times.  The reserves were so significant that the Government decided to scoop 3/4 of a billion dollars from ICBC’s coffers.
With current rates ICBC can weather the storm of market volatility and the ups and downs of claims payouts year over year.  All this with net revenues significant enough to get the company through leaner years.  The Government is short on funds, they scooped money from ICBC and that is why motorists are faced with rate increases.

"No Authority" For ICBC Independent Medical Exam in UMP Arbitrations

Written by admin on . Posted in ICBC UMP Cases, independent medical exams, Uncategorized.


While there is no shortage of caselaw addressing the BC Supreme Court’s ability to order a Plaintiff to undergo an Independent Medical Exam in the course of a personal injury lawsuit, Arbitrators determining Claimant entitlement to Underinsured Mototist Protection (“UMP”) Compensaiton have no such authority.  This was determined in an UMP decision released last year.
In last year’s case (Undisclosed v. ICBC) the Claimant was severely injured by an underinsured motorist in Washington State.  The Plaintiff succeeded in her liability claim against the motorist and was awarded over $1 million in damages.  The liability finding was binding against ICBC but the damage award was not as it was not determined under BC law.
In the course of the Claimant’s UMP arbitration (conducted under the Commercial Arbitration Act applying the Domestic Commercial Arbitration Rules of Procedure) ICBC applied to introduce into evidence an independent medical report obtained by another Defendant in the Washington litigation and further to compel the Plaintiff to attend three so-called ‘independent’ medical exams.
Arbitrator Camp ruled that while ICBC was entitled to introduce the report obtained in the previous litigation, the arbitrator had “no jurisdiction” to compel the Plaintiff to attend an independent medical exam.  Arbitrator Camp provided the following reasons:
25.  I have reviewed the Rules that govern this arbitration as amended in 1995 and 1998 and I again find no express or implied authority in an arbitrator to order that the claimant undergo an independent medical examination or evaluation.  This lack of jurisdiction is underscored by the fact that the 1995 and 1998 amendments to the Rules expressly empowered an arbitrator, at his or her discretion, to order a pre-hearing oral examination of a party.
26.  I am mindful of the argument by ICBC that I must treat ICBC fairly and I must give ICBC the full opportunity to present its case.  I am also mindful of my obligation that I must strive to achieve a just, speedy and economical determination of this proceeding on its merits.  See Rule 19.
27.  This accident and the injuries to this claimant happened over 14 years ago and without being critical of any counsel, the wheels of justice in this case are grinding very slowly, some might say too slowly.  This claimant has been examined by a host of medical practitioners, both treating physicians and independent medical examiners, as well as other medical oriented practitioners.  She has been examined under oath on two occasions on the subject of her damages.  All of this evidence is at hand.  Certainly, it can be argued that there are outstanding uncertainties pertaining to her medical condition and pertaining to her future care and capacity to earn income but that will always be the case.
28.  I conclude that I have no jurisdiction to order a form of independent medical examination.  I also wish to add that if I did have such jurisdiction and if that jurisdiction was discretionary, in this case and in all of the circumstances pertaining to this case, I would not exercise my discretion in favour of ordering the independent medical examinations as requested by ICBC.

Massage Therapy is a Mandatory ICBC No-Fault Benefit

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 55 Comments on Massage Therapy is a Mandatory ICBC No-Fault Benefit


Reasons for judgement were released today by the BC Court of Appeal confirming that ICBC’s No-Fault Benefits Scheme (aka Part 7 Benefits) requires mandatory coverage of massage therapy benefits.  These reasons are useful as they contradict ICBC’s internal policy limiting the availability of coverage for massage therapy.
In today’s case (Raguin v. ICBC) the infant plaintiff incurred several hundred dollars of massage therapy expenses following collision related injuries.  ICBC refused to reimburse these arguing massage therapy is a “permissive benefit” and these expenses need not be covered.  The Plaintiff sued and at trial ICBC was ordered to pay.  ICBC appealed but the BC Court of Appeal dismissed the matter and upheld the trial judgement.
In finding that massage therapy is included as a mandatory part 7 benefit the BC Court of Appeal provided the following reasons:

[31] The following observations about ss. 88(1) and (2) are uncontentious.  The imperative word “shall” is used in relation to ICBC’s obligation to pay for the benefits described in s. 88(1), making such payments mandatory.  Under s. 88(2), ICBC is given discretion, as indicated by the permissive word “may”, to pay for additional benefits that are “likely to promote the rehabilitation of an insured who is injured in an accident”.

[32] Although the benefits listed in s. 88(1) are mandatory, ICBC has a limited power to challenge an insured’s claim made under that subsection.  This power is derived from the requirements that the expenses incurred must be both necessary and reasonable.  In determining whether a particular treatment is necessary and reasonable, ICBC may require a medical examination of the insured under s. 99(1) of the Regulation.  ICBC may also demand a medical certificate under s. 98(1) of the Regulation or a medical report under s. 28 of the Act. ..

[56] Physical therapy is a mandatory benefit under s. 88(1) but it is not defined in the Regulation.  The dictionary definition and the definition in the related regulatory scheme define physical therapy as including massage.  The Health Professions Act defines “health profession”.  Regulation of health professions, such as physical therapy, includes the restriction of the provision of a designated service to a person registered to practise that specific designated health profession.  Massage therapy is designated as a health profession and is governed by the Massage Therapists Regulation.  Registration with the College of Massage Therapists is required and no person other than a registrant may practise massage therapy.

[57] In light of the provisions to which I have referred, ICBC’s submission that including massage therapy as a benefit payable under s. 88(1) would open the floodgates to all manner of questionable procedures is unsupportable.

[58] While the Regulation does not refer specifically to massage therapy in s. 88(1), I am of the view that, when all of the relevant provisions in the Regulation are read together with the Health Professions Act and its related Regulations, physical therapy may properly be interpreted as including massage therapy.  To be payable under s. 88(1), the other requirements must be met as stated in the section; that is:  “[w]here an insured is injured in an accident for which benefits are provided under this Part, the corporation shall … pay as benefits all reasonable expenses incurred by the insured as a result of the injury for … necessary physical therapy … .”

[59] In this case, the respondents’ doctor recommended massage therapy as part of the infant plaintiffs’ recovery.  There is no suggestion that the recommended treatment was unnecessary or provided by someone other than a registered massage therapist, or that the expense was unreasonable.

"More Attention Needs to be Paid to the Rubric of 'Suffering' than 'Pain'"

Written by admin on . Posted in ICBC UMP Cases, Uncategorized.

Reasons for judgement addressing quantum of damages were released last year by Arbitrator Camp in an ICBC UMP Dispute assessing $75,000 in non-pecuniary damages for a Claimant who suffered relatively modest injuries.
In last year’s case (Undisclosed v. ICBC) the three Claimants suffered injury in a 1996 collision in Washington State.  At trial each was awarded over one million dollars.  As the at fault motorist was under-insured the Claimants applied to ICBC for UMP.  They had to re-litigate the value of their claim as the Washington Jury award was not binding on ICBC for UMP purposes.
The collision injured all occupants of the vehicle all of whom were related to each other.  The Claimant and her three daughters were injured, some of these injuries were severe.  While the Claimant’s injuries themselves were not severe her “matriarchal role…has been significantly and adversely affected“.  In assessing non-pecuniary damages at $75,000 Arbitrator Camp provided the following reasons:
97.  With respect to general damages for pain and suffering, this is a claim in my opinion in which more attention needs to be paid to the rubric of “suffering” than “pain”.  I turn to a few fairly recent British Columbia decisions which offer guidance in this area….
102.  Hence, in addition to listing “emotional suffering” (not defined) as a common factor influencing the award of non-pecuniary damages, the Stapley case considers, and adds commentary and an award for the “loss of lifestyle”.
103.  In Kuskis v. Tin, 2008 BCSC 862, the plaintiff suffered from a worsening of a pre-existing migraine disorder, a new form of headache and low grade but persistent neck and shoulder pain as a result of soft tissue injuries caused by a motor vehicle accident.  In awarding Ms. Kuskis non-pecuniary damages, the court noted that she was “sometimes exhausted, irritable and unhappy”, and while she could work, travel and socialize most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain.  Specifically, her ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue (para 143).
104.  Other factors taken into consideration under the general concept of “pain and suffering” include: anxiety, depression, deleterious impact on quality of life (specifically comparing personality and lifestyle before and after the accident) (see Djukic v. Hahn, 2006 BCSC 154 at paras. 61-64); changes in personality including being more “withdrawn and distracted”, increased tiredness, and inability to enjoy activities previously enjoyed (see Fox v. Danis, 2005 BCSC 102 at paras. 112-122); and depression affecting concentration and attention (Maillet v. Rosenau et al., 2006 BCSC 10 at paras. 63-65).
105.  I find that Mrs. T has suffered much more than just aches, pains and headaches.  Her world was and is hinged on her matriarchal role that has been significantly and adversely affected by this accident as described above.  Taking all of the circumstances into account, I find an appropriate award of damages for pain and suffering to be $75,000.

Cost of Future Care and Publicly Funded Benefits

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


Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, addressing whether future care damages can be awarded for health care items that are publicly available but more quickly available through private options.  In short the Court held that damages can be awarded for these damages provided there is evidence that electing the private route is reasonable and subject to the possibility the expenses will actually be incurred.
In this week’s case (Engqvist v. Doyle) the Plaintiff suffered chronic injuries as a result of two collisions.  These needed diagnostic nerve blocks and depending on the results rhizotomies.  Both procedures were available through BC’s public healthcare system but private options were available on a much more expedient basis.  The Plaintiff sought damages for the private procedures.  ICBC argued this was not necessary.
Ultimately Mr. Justice Rogers awarded some damages considering the cost of these private interventions but was conservative in the award noting some “reservations” about whether the Plaintiff would actually undertake private treatments.  In allowing damages for these items the  Court provided the following reasons:

[44] The parties brought to trial conflicting views concerning the plaintiff’s claim for money to pay for private health care. That claim is for money to pay for private provision of four to six medial nerve block injections and, if the injections are diagnostic of further therapy, one or more rhizotomies upon the indicated nerves. The parties differed on whether the plaintiff should receive an award sufficient to pay for the injections and rhizotomies at a private health care clinic, or whether the plaintiff should confine herself to the free-to-her public health care system. The plaintiff plumps for the former, the defendants argue for the latter.

[45] The first point to address on this issue is that it does not concern the Canada Health Act. It does not require a philosophical discussion of the pros and cons of a general public health insurance scheme. Neither does the issue raise concerns about “queue jumping” by a well-resourced patient.

[46] Instead, the fundamental issue is whether a particular future treatment modality is reasonably necessary to promote the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). In the case of medial nerve blocks, the evidence at trial was clear that the plaintiff should undergo at least one set of medial nerve block injections. The evidence at trial was also clear that the plaintiff could access medial nerve block injections on a fee-for-service basis at a private health clinic pretty much at her convenience, while publicly funded medial nerve blocks require that the plaintiff go on a four- to six-month waiting list. Similar time frames apply to rhizotomy procedures if such are indicated by the nerve blocks.

[47] In Moussa v. Awwad, 2010 BCSC 512, Russell J. considered a similar claim. The plaintiff suffered a shoulder injury and, after a lengthy period of investigation and diagnosis, elected to pay for repair surgery at a private clinic. He claimed the cost of that surgery as a special damage. Russell J. allowed the claim, saying:

[266] While the cost of private care will not be an appropriate special cost in every case, given the plaintiff’s emotional uncertainty about surgery and his continuing pain, this is a rare case and I find it reasonable in this case that the plaintiff chose to pursue private surgery with the doctor that he trusted and so that he could have his pain relieved immediately. I therefore award the plaintiff the costs of the surgery.

[48] In the present case, the evidence established that it is possible for the plaintiff to obtain nerve blocks and rhizotomies more quickly if she paid for them than if she waited for the public health system to provide them.

[49] Private fee-for-service care, therefore, offers the plaintiff the possibility of alleviating her symptoms more quickly than the public system. That is the only point of commonality on this narrow issue between this case and Moussa. More particularly, the plaintiff testified that she wants to try the medial nerve block injections and would consider a rhizotomy. She is not, therefore, unsure or uncertain about the therapy. Unlike the plaintiff in Moussa, the plaintiff here did not testify that she has any feelings of trust in or loyalty to any particular medical practitioner.

[50] The question in this case comes down to whether the plaintiff ought to mitigate her cost of future care by confining herself to the public health care system. That question can only be resolved by determining whether it is reasonable for the plaintiff to submit to the wait times and vagaries of the public health care system, thus increasing the length of time before she will know if a rhizotomy will reduce her pain. Private provision of medial blocks will considerably accelerate her coming to know whether a rhizotomy will likely help her.

[51] Reasonable in this context must be measured by an objective standard. What is reasonable in a given case must take into account not only the wait times involved, but also the degree of the plaintiff’s pain while sitting out those wait times and the effect that that pain will have on the plaintiff’s enjoyment of life. A minor ache in one’s little finger would be unlikely to be sufficient to underwrite expensive privately funded health care while a case of surgically curable paraplegia probably would.

[52] Accepting as I do the plaintiff’s evidence concerning the pain she has and its interference with her everyday life, I find that the plaintiff’s pain and its interference with her enjoyment of life is sufficient to merit acceleration of treatment via funding of private health care.

Plaintiff Expert Witness Allowed to Attend Defendant Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure.


The law in BC generally permits only parties and their lawyers to attend examinations for discovery.  In limited circumstances, however, the Court can permit others to attend a discovery relying on the BC Supreme Court’s ‘inherent jurisdiction‘.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He sued the manufacturer and scheduled an examination for discovery of an engineer employed with the Defendant.  The Plaintiff argued that his expert should be allowed to attend as the claim includes “matters requiring an understanding of technical concepts relating to the design, manufacture, and testing of motorcycles and sidecars“.
The Defendant opposed arguing this would add unnecessary time and expense to the Court Proceedings.  Mr. Justice Grauer disagreed with the Defendant and allowed the expert to attend.  In doing so the Court provided the following reasons:

[6] The Rules do not specifically address this issue, but it has certainly been the practice in this province that only the parties and their legal representatives may attend examinations for discovery in the absence of consent or an order of the court.

[7] In Ian Macdonald Library Services Ltd. v. P.Z. Resort Systems Inc. (1985), 67 B.C.L.R. 269, Madam Justice Southin, then of this Court, considered a similar application and said this:

[6]        I think the simple and sensible answer to this question is that counsel should be able to do so whenever the nature of the case is such that counsel cannot reasonably be expected to conduct a full and proper cross-examination of the witness being discovered without expert assistance.

[7]        Whether in any given case such expert assistance is necessary will depend, among other things, on:

1.         The issues in the action;

2.         The level of technical and scientific knowledge which can reasonably be expected of counsel generally at any given time;

3.         The extent of inconvenience to which the parties may be put if counsel must conduct part of an examination then adjourn it, consult with an expert and conduct the rest of it perhaps on some other occasion.

…

[9] I find that the issues in this case raise a level of technical and scientific knowledge beyond what can reasonably be expected of counsel generally.  While counsel normally are very adept at quickly, if temporarily, acquiring specialized knowledge relevant to their cases, it would be unwise I think for the court to second-guess the judgment of counsel as to what is required for the full and fair examination of an opposite party who possesses specialized expertise in this type of case.  Given the nature of the issues, I see nothing that strikes me as unreasonable about the request.

[10] What must be considered however is whether accommodating the request of examining counsel would result in prejudice to the party being examined.  If so, then the court must attempt to weigh that prejudice against the prejudice to the examining party of being deprived of expert assistance.

[11] In this case, no prejudice has been put forward by Harley-Davidson other than the concerns of disruption, increased expense, and extended time.  As to disruption, both counsel are experienced and I see no reason to suppose that this concern is likely to materialize in any meaningful way.  As to increased expense, the evidence does not satisfy me that such a result is likely.  Similarly, the time is at least as likely to be shortened as it is to be extended.

[12] Counsel for the defendant suggests that this will lead us down a slippery slope to a result where counsel will always request expert assistance at examinations for discovery in technical cases.  I very much doubt that that will follow, but in any event each case will be dealt with on its individual circumstances.  Where the examining party can establish the need, and the party being examined cannot establish prejudice, there is no reason to worry.  It did not worry Madam Justice Southin.

[13] As to the concept of proportionality, it seems to me that granting the relief requested is more likely to promote than inhibit the just, speedy, and inexpensive determination of this proceeding on its merits taking into account the amount involved, the complexity of the issues and the importance of conducting a full, fair and informed examination for discovery.  Accordingly, leave is granted as requested.

Out of Province Quantum Awards Not Binding in ICBC UMP Proceedings

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 56 Comments on Out of Province Quantum Awards Not Binding in ICBC UMP Proceedings


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision addressing whether ICBC could re-litigate quantum of damages after the issue was already decided in an out of Province trial.  In short the Arbitrator held that trial verdicts addressing liability are binding for UMP coverage purposes but awards addressing quantum are not binding as these need to apply the law of British Columbia.
In the recent case (Undisclosed v. ICBC) the Claimants were badly injured in a 1996 collision in Washington State.  The at fault driver had only $200,000 of insurance coverage.  The injured parties were each insured with $1 million of Underinsured Motorist Protection with ICBC.  They sued the ICBC insured driver in Washington State and were awarded global damages of $9.1 million with 5 of the 6 Claimants’ individual awards exceeding $1 Million.
The Claimants and ICBC could not agree on the amount of UMP Benefits payable and submitted the issue to arbitration.  The arbitrator was asked to decide if the quantum award from Washington State was binding (less applicable deductions) or if the issue could be re-litigated.  In finding that the Washington State jury award addressing damages was not binding Arbitrator Camp provided the following reasons:
21.  On the facts of this case ICBC concedes the claimants have satisfied all of the prerequisite requirements laid down for UMP coverage.  Hence, it is conceded that the Washington jury verdict established liability on the underinsured motorist, resolved issues of contributory negligence and established that the damages attributable to the fault of the underinsured motorist exceeded the insurance limits and assets available to compensate the claimants.  Put another way, it is conceded that the Washington jury verdict determined that the claimants are “insureds” and (the at fault motorist) is an “underinsured motorist” for the purposes of the UMP scheme.
22.  In the majority of cases, in my experience, the parties (ICBC and the claimants) agree that the prerequisites for UMP coverage have been satisfied and the parties arrive at a settlement pertaining to UMP compensation.  Where the parties cannot agree, ICBC can follow one of two courses of action.  ICBC can either require that the claimant(s) proceed to a tort trial to determine the prerequisites necessary for UMP arbitration, or they can agree that those prerequisites have been met and proceed to an UMP arbitration by consent.
23.  In this case, the evidence satisfies me that ICBC required a tort trial to determine the prerequisites necessary for UMP arbitration.  The claimants chose Washington State as the most favourable jurisdiction to proceed with the tort trial, for good and valid reasons which are not germane to the arbitration issue before me…
28.  Section 148.2(6)(a) relating to the legal entitlement to UMP coverage is relatively straightforward.  It says that where an accident for which UMP compensation is being sought occurs in another jurisdiction, the law of the place where the injury or death was suffered shall be applied to determine whether the claimants are legally entitled to recover UMP compensation and if a difference arises as to that legal entitlement, that difference shall be arbitrated under the Commercial Arbitration Act of British Columbia.  It is section 148.2(6)(b) relating to the measure of any damages and the assessment of the amount of UMP compensation payable that is at the nub of this arbitration…
33.  Turning to my interpretation of s. 148.2(6), I find that the section is properly interpreted to mean that issues of legal entitlement shall be determined by Washington law in this case and that the issues pertinent to quantum of damages shall be determined by the law of British Columbia.  I am fortified in coming to this interpretation because of the linkage between s. 148.2(6) and s. 148.1(5).  Section 148.1(5) constitutes a limiting provision and the limitation only works or works much better if the interpretation of s. 148.2(6)(b) is interpreted such that the issues pertaining to the quantum of damages shall be determined by the law of British Columbia.

Injuries "Are Not Items on a Grocery List" and the Court "Is Not a Cashier"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 57 Comments on Injuries "Are Not Items on a Grocery List" and the Court "Is Not a Cashier"


Reasons for judgement were released this week providing feedback on valuing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) noting that injuries cannot be addressed in a piece-meal fashion and instead the total consequences need to be considered.
In this week’s case (Engqvist v. Doyle) the Plaintiff was involved in two collisions.  She was not at fault for either.  The crashes caused various soft tissue injuries which required diagnostic medial nerve blocks and depending on the result the possibility of facet rhizotomies.  The Plaintiff also sustained a dental injury.   Given the planned further medical intervention there was likelihood of improvement but also a good chance that the Plaintiff’s injuries would pose permanent difficulties.  Global Non-Pecuniary Damages of $70,000 were assessed for the Plaintiff’s injuries.
In arriving at this figure Mr. Justice Rogers provided the following comments addressing the fact that it is wrong to stack injuries in assessing non-pecuniary damage awards:

[28] The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.

[29] I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.

[30] I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.

For a discussion of the factors BC Courts do consider in assessing non-pecuniary damages you can click here for a podcast I uploaded last year.