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Why Frequent Doctor Visits Don't Increase The Value of Personal Injury Claims

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Uncategorized. 50 Comments on Why Frequent Doctor Visits Don't Increase The Value of Personal Injury Claims


As previously discussed, frequent doctor visits in and of themselves add no value to a personal injury claim.  Seeing a doctor simply to ‘paper’ a personal injury claim really does nothing to add to the amount of compensation a claimant is entitled to receive not to mention that it creates a costly and unnecessary burden on the medical system.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that medical visits to address ‘inconsequential‘ matters with a view to assisting a personal injury claim are frowned upon.
In this week’s case (Hough v. Wyatt) the Plaintiff was involved in a 2009 collision.  He sued seeking over $350,000 in damages.  The Court largely rejected the Plaintiff’s claim finding that while the collision did cause some injuries these were little more than a ‘minor degree‘ of aggravation of pre-existing injuries.  Non-Pecuniary damages of $15,000 were assessed.
In the course of the judgement Madam Justice Stromberg-Stein had provided the following critical comments:
[9] Mr. Hough was a very difficult witness. He is a poor historian, which is understandable given his extensive medical history. However, he bears the burden of proof. He was argumentative, abrasive, sometimes rude, often unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly demonstrates an attitude of entitlement to insurance benefits, at one point indicating he doesn’t understand the problem here, it is only insurance money. He reports everything, no matter how inconsequential, even a broken fingernail, so if there is a problem in the future, he can get compensation. The trouble for Mr. Hough is he was a medical disaster before the accident, and the defendant is not obliged to pay for all that ails him or ailed him. Mr. Hough’s pre-existing medical condition, his original position, as outlined in the evidence of Dr. Waiz, and what Mr. Hough can recall, would have manifested debilitating effects in any event, regardless of the accident. His original condition would have detrimentally affected him even absent the defendant’s negligence. The defendant is not required to compensate him for debilitating effects not caused by the accident….
[14] Dr. Waiz’s evidence is unsatisfactory on many levels, not the least of which his manner in which he managed Mr. Hough’s care with increasing doses of narcotics. His records are unreliable. He blames computer programs and computer generated forms. He has been willing to fill out reports to benefit Mr. Hough, for example, claiming all Mr. Hough’s drugs were WCB-related so Mr. Hough could be compensated, and claiming a wrist fracture was a WCB injury due to ongoing weakness and pain in his right leg. This is the same broken wrist that Mr. Hough now claims was caused by the accident for the same reason. Where it has suited Mr. Hough, Dr. Waiz has reported to WCB Mr. Hough is unable to work in any capacity. Now he was reporting to this court that, because of the accident, Mr. Hough cannot work. The concern is he is parroting what Mr. Hough wants him to say.
While it is true that serious injuries warrant higher damage awards than minor injuries and that serious injuries typically result in more medical appointments, the mere number of doctor’s visits in and of themselves do not assist in valuing a personal injury claim.  You can click here for a short discussion addressing the factors Court’s often consider when assessing non-pecuniary damages (money for pain and suffering) in a BC personal injury lawsuit.

Defense Doctor Video Deposition Request Denied

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams. 55 Comments on Defense Doctor Video Deposition Request Denied


In  the course of a lawsuit it is not uncommon for expert witnesses to occasionally be unavailable for trial.  When this happens their evidence is often recorded by way of pre trial deposition.  If the parties don’t consent to this practice the party wishing to rely on the expert can seek a court order permitting a deposition.  Useful reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing such an application.
In this week’s case (Campbell v. McDougall) the Plaintiff was involved in two collisions.  In the course of her claim she attended a Defence Medical Exam with Dr. Maloon.   He produced a report which the Plaintiff intended to challenge by way of cross examination.  Dr. Maloon was scheduled to be out of the Country at the time of trial and the Defendants lawyer brought an application that his evidence be recorded by way of pre-trial deposition.  The Plaintiff opposed arguing that if the physician was not available to testify in person at the very least he should testify live via video-conference.
Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following helpful reasons:

[47] The predecessor to Rule 7-8 was Rule 38 of the Rules of Court. The language in these Rules mirror each other except for the new consideration of the possibility and desirability of having a witness testify by videoconferencing: Seder v. Insurance Corporation of British Columbia, 2011 BCSC 823 at para. 4.

[48] The introduction of this factor reflects a recognition by the Lieutenant Governor-in-Council that modern technology will allow a witness outside of the court’s jurisdiction to provide live and simultaneous evidence — in effect, to be in open court…

[55] In this case, Dr. Maloon is an important witness for the defence. From this observer’s perspective, there are several aspects of the report that invite careful and thorough cross-examination by plaintiff’s counsel.

[56] It is fairly easy to anticipate areas of cross-examination where objections might be raised by the defence. The court will then be asked to rule on the objections at trial in Dr. Maloon’s absence. The plaintiff will not have the opportunity to cross-examine Dr. Maloon on issues arising from evidence led at trial, or garnered through the cross-examination of the plaintiff’s own experts.

[57] The concerns raised by Mr. Justice Harris in Byer v. Mills are reasonably anticipated in this case. It is desirable that Dr. Maloon testify in open court; videoconferencing offers this opportunity.

[58] The defence has not provided any evidence to contradict the plaintiff’s evidence as to the availability of videoconferencing technology in southern Africa. How that videoconferencing will be set up is yet to be determined. Nonetheless, the criteria under Rule 7-8(1)(d) is the possibility of the use of videoconferencing.

[59] Another factor to consider here is that Dr. Maloon was aware of the trial date and the possibility of his sabbatical when he agreed to perform this independent medical examination. While the court would never discourage or be critical of the terms of the sabbatical taken by Dr. Maloon, the consequences of that sabbatical should not trump the objective of achieving a fair trial in this matter.

[60] Finally, it should be noted that the court’s order is simply to dismiss the application to have Dr. Maloon attend at a deposition on September 8, 2011. The order will not state that Dr. Maloon’s evidence must be provided by way of videoconferencing although that appears to be the parties’ intention as neither wishes to disrupt Dr. Maloon’s sabbatical by flying him to Victoria for a day or two of testimony: Rule 7-8(3)(e).

Welcome Lawyers Weekly Readers

Written by admin on . Posted in Uncategorized. 45 Comments on Welcome Lawyers Weekly Readers


The Lawyers Weekly published a brief article today naming Canada’s top 24 legal social media influencers.  I’m honoured for the mention and would like to thank Jordan Furlong and Warren Smith for including me on this list.   They humbly did not include themselves but both clearly make the cut.
For those of you visiting this blog for the first time after reading The Lawyers Weekly article, welcome!   Please don’t hesitate to contact me if you have any questions about this blog or my social media involvement.
For you BC lawyers thinking of dipping your toes into the legal blogging waters, you should consider participating in the Courthouse Libraries Practice Portal Legal Blogs.  If you’re interested you can contact Nate Russell for details.

More on Costs and the Flexibility of the New Rules of Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 52 Comments on More on Costs and the Flexibility of the New Rules of Court


(Update June 5, 2013- the underlying trial verdict was upheld in reasons for judgement released today by the BC Court of Appeal)
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As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.
Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.
In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.
ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15]Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16]The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17]The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18]This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.

Why Tort "Reform" Is Not Needed To Keep Frivolous Lawsuits Out of Court

Written by admin on . Posted in Tort Reform.

Every so often a sensational case makes headlines that gets dismissed after trial. Pundits and the press pick up on these stories.  Such cases can receive disproportionate media attention and are sighted as key examples for the need to have tort “reform“.  The other catchphrase that’s thrown around is “lawsuit abuse”.
“Reform“, however, is not necessary.  The BC Supreme Court already has tools built in to discourage litigation.  We have a “loser pays” system which exposes losing litigants to significant costs consequences.  Additionally, if a litigant continues to pursue actions without merit they can be locked out of the Court process entirely.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this tool in action.
In this week’s case (Keremelevski v. ICBC) the Plaintiff brought an application which the Court described as having “no sensible basis in law or fact” and had “absolutely no chance of success“.  The Plaintiff’s application was dismissed but the Court noted that “The current proceedings, wholly devoid of merit and lacking any possibility of success, are simply another chapter in a long series of proceedings launched by the applicant in this Court”
The Court went on to make a so-called vexatious litigant order and in doing so provided the following reasons:
[12] Mr. Keremelevski has clearly demonstrated that he has no real comprehension of the court process and he persistently files applications in this Court that are completely unmeritorious. As Mr. Justice Frankel observed in the above excerpt from the Houweling case, judicial resources are not infinite, and the filing of what could justly be described as a blizzard of applications does take up valuable court time that ought to be used to hear other matters that have substance. As Frankel J.A. also observed, while persons are entitled to have their day in court, they are not entitled to be always in court “day after day in the futile pursuit of remedies to which [they are] not entitled”. As I observed, Mr. Keremelevski has initiated a significant number of proceedings in this Court that have had no possibility of success. He has also sought unsuccessfully leave to appeal to the Supreme Court of Canada in some of the proceedings. As is the case with the instant proceedings, it appears these matters have been devoid of merit with no possibility of success. In these circumstances, it seems apparent to me that it is now requisite for this Court to take action to prevent the misuse of its process. It is time, and indeed probably past time, to make an order in the case of Mr. Keremelevski in the terms made in the earlier cases referred to that Mr. Keremelevski will be precluded from filing any further documents in this Court without leave first obtained from a justice of the Court in chambers. As I observed in the Booty case, such an order is requisite to prevent misuse of the litigation process.

Hospital Insurance Program Payments Non-Deductible Under UMP

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


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision which dealt with a variety of issues including whether payments received under BC’s Hospital Insurance Program are deductible by ICBC in Underinsured Motorist Claims.
In the 2009 case of APS v. ICBC the Claimant was severely injured in a 2004 collision in Nevada.  She was a BC resident and had UMP Coverage with ICBC.  Following the crash and initial treatment in the US the Claimant was airlifted back to BC and received further hospital treatment.  The cost of these totalled $197,263.  ICBC argued that the cost of these treatments were in the nature of insurance benefits and deductible under Section 148.1(1) of the Insurance (Vehcle) Regulation.   Arbitrator Boskovich disagreed and provided the following helpful reasons rejecting this argument:
130.  The services and benefits covered under out universal compulsory medical coverage, which are incurred in almost every under insured motorist action, cover amounts paid in the past and those to be paid in the future.  Given the catastrophic nature of many of the cases that result in UMP Claims the costs are often considerable.  Had the Legislature intended for UMP awards to be net of these services and benefits then it would have specifically provided for such a deduction in clear and unambiguous terms in the legislation.
131.  Having regard to the nature and extent of the evidence tendered and to the overall statutory intention of Subsection 148.1(1) of the Regulations, I do not find the Hospital Insurance Program payments to be an applicable deductible amount pursuant to paragraph (i).  As stated above, had the Legislature intended such potentially considerable deductions to come into play it would most certainly have specifically stated so.
132.  If I am wrong about the above, I still find having regard to the wording of subsection (i), that such amounts would not be payable to the insured as a benefit or right and claim to indemnity.  They do not represent pecuniary payments of a like nature for which the Claimant is claiming compensation pursuant to the tortious conduct of the underinsured motorist and which would have been recovered thus resulting in double recovery.
This case is also worth reviewing for some of the other finding made with respect to deductible beneifts.  The Claimant’s husband died in the same collision and as a result the Claimant received some modest compensation through a Family Compensation Act action and through varioius insurance benefits.  Arbitrator Boskovich made the following findings with respect to other deductible amounts:
1.  If a Claimant received damages under the Family Compensation Act from the collision in question then those can be deductible in an UMP Claim even if underlying action dealt exclusively with the Claimant’s personal tort claim.
2.  ICBC Part 7 Death Benefits paid from the deceased’s Part 7 benefits to the Claimant are deductible in an UMP Claim.
3.  A CPP Death Benefit paid directly to the claimant is deductible in an UMP claim.
4.  CPP and private survivor’s pension benefits are deductible in an UMP claim with the limitation that these deductions should be calculated on the basis of the natural life expectancy of the claimant.

Why Sidney Crosby's Concussion is the Best Thing That Happened for Mild Traumatic Brain Injury Victims

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 48 Comments on Why Sidney Crosby's Concussion is the Best Thing That Happened for Mild Traumatic Brain Injury Victims

(Image via Wikipedia via pointnshoot’s flickr stream)
In two words: Public Understanding.  While Sidney Crosby’s recent difficulties recovering from the effects of multiple concussions are unfortunate, they lead to an important teachable moment.
Mild Traumatic Brain Injury can cause long-standing and debilitating effects.   Despite this, however, victims of MTBI often face skepticism in two notable ways, particularly in the injury litigation context.
First, many argue that without a loss of consciousness a person cannot suffer a traumatic brain injury.  Medically this is simply wrong.  There is absolutely no need to be knocked unconscious to suffer a traumatic brain injury or to suffer long term consequences from traumatic brain injury.
On the face of it the checks that Sidney Crosby took which caused his brain injury were relatively unmemorable in the hard hitting NHL.  He was not knocked out.  He stood back up and seemed to be generally ‘ok’ following these hits.  He skated off the ice on his own (much like an individual walking around a little dazed after a motor vehicle collision).  Despite this there is no doubt he suffered real brain injury.  His injury, and the circumstances that caused it, help dispel this myth.
The second type of scrutiny often faced by brain injury victims is that they need to ‘suck it up’ and get over it.   How can you have long lasting effects if you weren’t knocked out?  Why can’t you just ‘shake it off’ and get back to work?  Are you malingering?  You don’t look hurt, why aren’t you working?
Again, Sidney Crosby is a prime example that such injuries can and do lead to long term disability.  No one will argue that Sidney Crosby is a malinger or a wimp.  He is one of the highest funcitoning athletes of this generation.  Nobody reaches this level of success without inherent toughness, work ethic and a high pain threshold.  The top of the line doctors treating Sidney’s injuries confirm he is not fit to return to work.  This serves as a great example that caution is the order of the day when returning to work following traumatic brain injury.  The recovery period can be lengthy.  Sometimes career ending.
If nothing else, Sidney Crosby’s injuries have gone a long way in educating the public that there is nothing mild about mild traumatic brain injury.

ICBC Hit and Run Claim Succeeds With The "Expectation The Other Driver Would Comply With the Law"

Written by admin on . Posted in Uncategorized.


Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, which I summarize in my continued efforts to highlight the ‘reasonable efforts’ requirement for hit and run accident victims.
In last week’s case (Singh v. Clay) the Plaintiff was injured in a handful of collisions.  In one of the incidents the Plaintiff’s vehicle was rear-ended.  Following impact the offending motorist “drove away without stopping, as the Plaintiff exited his vehicle“.  As a result the Plaintiff was unable to take down the offending vehicles licence plate number.
ICBC argued that the Plaintiff did not take reasonable efforts at the scene to identify the driver.  The Plaintiff conceded that he “could have done so but he did not look at the licence plate as he did not expect the driver to drive off as she did“.  Mr. Justice Greyell found this was a reasonable explanation and concluded the Plaintiff complied with his obligations under section 24 of the Insurance (Vehicle) Act.  The Court provided the following useful comments:

[78] In the present case, Mr. Singh might have been able to take down the licence plate number of the offending vehicle if he had done so immediately.  However, he did not expect the vehicle to leave the scene of the accident.  Once it became clear that the vehicle was not going to stop, his wife made an effort to write the number down, but only got two of the letters.  Following the accident Mr. Singh took all reasonable steps to ascertain the identity of the driver.  He spoke to two witnesses, he telephoned ICBC, attended the police, phoned his lawyer to obtain advice as to how to proceed, and, as a result, put up flyers seeking witnesses.

[79] In Leggett the plaintiff’s case was dismissed because the Court found he had made a decision not to pursue his rights at the time of the accident.  In Smoluk the Court distinguishedLeggett stating, at para. 9:

[9]        In my view, the Leggett case is clearly distinguishable from this case because the plaintiff in this action made no decision not to pursue her rights. She was prevented from obtaining more information because of the precipitate departure of the wrongdoer, and in my view the plaintiff acted reasonably in taking down the license plate number which would lead any reasonable person to believe that the identity of the person had been or could easily be ascertained. The fact that she got the number wrong in such circumstances does not indicate unreasonableness.

[80] The facts in Smoluk are similar to those in this case.  The offending driver in that case drove away while the plaintiff was inspecting the damage to his vehicle.  While the driver in Smolukdid get the opportunity to take down a partial plate number Mr. Singh did not.  I find that under the circumstances his expectation the other driver would comply with the law and stop his/her vehicle was a reasonable one.  When the vehicle left the scene as he was getting out of his vehicle, it was too late to get particulars of the licence plate number.  I conclude Mr. Singh acted as a reasonable person would have acted in preserving his rights.

Welcome Charles Adler Listeners

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 55 Comments on Welcome Charles Adler Listeners


I’d like to welcome all my new readers who are here following yesterday’s interview with Charles Adler of Corus Radio. You can click here to listen to my portion of the interview:  charles-adler-erik-magraken-interview-september-8-2011 (clip courtesy of CJOB 68 Winnipeg, Corus Radio Network)
Charles canvassed the case in Illinois involving children suing their mother for alleged emotional distress.  The conversation then turned to the thresh-hold for suing for psychiatric injuries in British Columbia and the “Loser Pays” system.
For more on these topics you can click here to read my archived posts addressing lawsuits for psychological harm, and here for my archived posts on BC’s Loser Pays System.