BC INJURY LAW – Page 18 – The MacIsaac Group of Law Firms

Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

Written by ERIK MAGRAKEN on March 20, 2020. Posted in Uncategorized.

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea. They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision. At trial he was awarded damages which included payment for future care for massage therapy and kinesiology. Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred. An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations. In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

Written by ERIK MAGRAKEN on March 10, 2020. Posted in Occupier's liability claims.

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense. Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable. Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant. The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident. The Court disagreed and dismissed the claim. In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

Grouse Mountain Waiver Fails To Protect After Snowboarder Paralyzed

Written by ERIK MAGRAKEN on March 6, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Court of Appeal finding purported waivers of liability to be of no force and effect.

In this week’s case (Apps v. Grouse Mountain Resorts Ltd) the Plaintiff suffered a significant spinal injury at the C4/5 level, and was rendered quadriplegic while snowboarding the Defendant’s resort. He sued for damages but at trial the claim was dismissed with the Court finding posted waivers of liability prevented the claim.

The BC Court of Appeal overturned the result finding the posted waiver signs were not adequate. In reaching this conclusion BC’s highest court provided the following reasons:

$42,000 Non-Pecuniary Assessmet for Finger Injury to “Skilled Piano Player”

Written by ERIK MAGRAKEN on March 3, 2020. Posted in Uncategorized.

One of the hallmarks of the current justice system in BC is individuals are treated uniquely when having their injuries and losses assessed. Something the current government is hoping to take away with their proposed ICBC no fault system. Reasons for judgement were published today showing this assessment of individual justice in action.

In today’s case (Fung v. Dhaliwal) the Plaintiff was injured in a 2013 collision. Most of the injuries were transient and fully healed. The Plaintiff, however, also suffered a cut to the middle of his long finger which went on to cause long term dysfunction. The level of impairment was modest in most areas of life however the young plaintiff was a ‘skilled piano player’ and took great joy in this activity. The injury compromised his musical abilities. In assessing this unique loss and assessing non-pecuniary damages at $42,000 Madam Justice Forth provided the following reasons:

Government Introduces Bill Retroactively Limiting Disbursements In Injury Claims

Written by ERIK MAGRAKEN on February 25, 2020. Posted in Uncategorized.

Last year BC’s Attorney General introduced court rule changes creating a hard cap on how many experts individuals could present when prosecuting an injury claim in BC Supreme Court. It was designed to save ICBC money at the expense of people seeking a fair trial. The rule changes were swiftly struck down as being unconstitutional.

This week the government is at it again. They have introduced Bill 9 titled the Evidence Amendment Act, 2020 looking to bring in similar restrictions.

Like last year’s unconstitutional rule the bill looks to limit litigants with vehicle injury claims to one expert in fast track cases and no more than three in non fast track cases. The key difference is the new bill allows the Court to permit “additional experts to be tendered” if there are areas others requiring opinion evidence not covered by other experts and that without additional evidence the applicant “would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.“. The lack of judicial discretion was fatal to last year’s rule and this change will presumably save this bill from suffering the same fate.

Bill 9 goes further however and also looks to restrict disbursements in an arbitrary fashion. Bill 9 retroactively limits the recovery of necessary expenses that were lawfully, properly and reasonably incurred in full compliance with existing rules. The Bill gives the Lieutenant Governor in Council the power to cap the amount of disbursements payable as a percentage of the total amount recovered in an action. The Government announced they want the percentage to be 5%.

This rule, if implemented, will force people fighting ICBC to not call the evidence they need to prove their case unless they want to be stuck with an unrecoverable bill. This is a slanted rule designed to favour ICBC. The rule does not look after the public’s needs and instead favours a corporate institutional litigant.

A constitutional challenge will likely be launched if the government follows through with this ill conceived rule.

The full text of Bill 9 at first reading is as follows:

$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

Written by ERIK MAGRAKEN on February 5, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2015 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection. The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome. By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist. In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

Indivisible Injuries With Pre and Post “Minor Injury” Crashes

Written by ERIK MAGRAKEN on February 1, 2020. Posted in ICBC Minor Injury Caps.

What do BC Courts do with an indivisible injury claim where the injury arose in the pre ‘minor’ injury caps era and was aggravated after the ‘minor’ injury law came into force?

The first case to address this question found that, in line with the reasoning of Bradley v. Groves, the initial tort feasors can be held liable for the whole of the indivisible loss.

In the recent case (Rabbani-Nejad v. Sharma) the Plaintiff was injured in three collisions. She sued for the first two and liability was admitted. Both these claims preceded the ‘minor’ injury cap. The third crash occurred in the ‘minor’ injury cap era and no lawsuit was started.

The Court found all three crashes contributed to some extent to her injuries. The Court found the first two crashes caused an indivisible injury. The third crash caused some new injury in addition to aggravating the indivisible injury. To the extent of the latter the court found the Defendants were liable for the full extent of the losses from the indivisible injuries including the aggravation from the third crash. In reaching this conclusion Mr. Justice G.C. Weatherill provided the following reasons:

ICBC Trial Preparation Neglect “Deserves Sanction and Rebuke”

Written by ERIK MAGRAKEN on January 31, 2020. Posted in Uncategorized.

The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.

In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages. Fault was admitted by the Defendants and the matter was set for a 10 day trial. The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.

The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy. The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payable forthwith”

The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“. In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:

ICBC Changing Counsel at “11th Hour” Not an “Emergent Circumstance” Justifying Short Leave

Written by ERIK MAGRAKEN on January 28, 2020. Posted in Uncategorized.

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, dismissing short leave for three ‘last minute‘ applications.

In the recent case (Agelakis v. Xu) the Plaintiff was injured in a collision and sued for damages. One month before trial ICBC brought in a new defence lawyer. Two weeks before trial that lawyer sought short leave for three applications, namely for document disclosure; a further examination for discovery of the plaintiff; and removal of the proceedings from fast track litigation.

The Court held that these applications may have been dismissed on the merits however short leave was simply not appropriate as these last minute request would unfairly cause ‘dramatic upheaval‘ to the Plaintiff’s trial preparation efforts. In dismissing the request for short leave Master Muir provided the following reasons:

No Weight Given to “Simply Conclusory” Defence Medical Opinion

Written by ERIK MAGRAKEN on January 28, 2020. Posted in Uncategorized.

Adding to this site’s archived posts of judicial criticism of expert witness advocacy or otherwise unsatisforcy expert opinions, reasons for judgement were recently brought to my attention finding that ‘no weight‘ should be attached to an expert that provided a ‘simply conclusory‘ opinion.

In the recent case (Tzotzolis v. Wyman) the Plaintiff was involved in a 2016 rear-end collision. Following the crash the Plaintiff suffered from persistent lower back pain. Although the case involved a BC crash ICBC retained a physician based out of Ontario who occasionally flies to BC to provide an independent medical exam. That physician opined that the persistent back pain the Plaintiff suffered from was not related to the crash which was merely coincidental. In rejecting this opinion and finding it deserves ‘no weight’ Mr. Justice Saunders provided the following comments: