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Damages for Chronic Soft Tissue Injuries "Of No Clinical Significance" Assessed at $75,000

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing damages for chronic pain as a result of soft tissue injuries.
In this week’s case (Jackson v. Mongrain) the Plaintiff was involved in a 2006 collision.  The vehicle he was occupying was rear-ended by the Defendant.  Fault for the crash was admitted.  The Plaintiff was injured in this crash and in support of his case called evidence as to his long-standing symptoms of chronic pain.  The Defendant argued that the Plaintiff had no on-going injuries and in support of this argument pointed to the opinion of Dr. Reebye, a physiatrist hired by the Defence to conduct an ‘independent medical exam‘ who stated that the Plaintiff’s ongoing tenderness was of ‘no-clinical significance’.
Mr. Justice Stewart rejected the defence argument and went on to assess the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In doing so the Court made the following comments:

[24]        Because the point seemed obvious to me, at the end of the case I asked counsel for the defendant whether he conceded that to this day the plaintiff suffers from chronic pain which would not be his lot but for the negligence of the defendant on April 8, 2006.

[25]        The answer was no.

[26]        Why not?  As to that counsel for the defendant grounded his submission on the fact that Dr. Reebye, an expert in Physical Medicine and Rehabilitation, who examined the plaintiff on behalf of the defendant on June 22, 2010, told me that certain areas of tenderness in the plaintiff’s back were of “no clinical significance”.

[27]        The doctor told me that “not of clinical significance” meant that in his opinion what the patient complained of was “not a severe pain or it is localized pain”. Nobody, including me, asked the doctor to tell us anything more about what he meant by “of no clinical significance”. The doctor did make it clear elsewhere in his evidence that he did not doubt that the plaintiff was making truthful statements to him as he, the doctor, went about his examination. I must say that absent testimony to the contrary I assumed then and assume now that all the doctor was saying in using the phrase of “no clinical significance” was that the fact the area in question was tender resulted in a finding of just that, tenderness, and no more.

[28]        To say that that isolated statement by Dr. Reebye stands in the way of the conclusion noted above as to the overwhelming effect of the whole of the evidence makes no sense to me.

[29]        In the result, having recognized the caution that must be taken before finding that a plaintiff is burdened with pain and suffering as the result of soft tissue damage long after the flesh must have healed, I find as a fact that the plaintiff is burdened with chronic pain in the neck and back that would not be his lot but for the negligence of the defendant on April 8, 2006. That finding is based on the cumulative effect of my finding the plaintiff to be a witness upon whom I am prepared to rely, the thrust of the evidence of Dr. Mamacos (Exhibit 2 Tab 7) and Dr. Hamm (Exhibit 2 Tab 2 Page 13) and the absence of a pointed, precise statement by Dr. Reebye to the effect that he is of the opinion that the plaintiff does not suffer from chronic pain and discomfort which chronic pain and discomfort has its head and source in the injuries suffered by the plaintiff in the motor vehicle accident of April 8, 2006…

[53] The plaintiff has endured pain and suffering thus far for call it 57 months. His pain is chronic and I find in all likelihood will be with him to the grave. Dr. Mamacos added that once an individual’s back is injured the chances of what he called “back issues” in the future increase. The plaintiff swims and walks regularly. He exercises. He has had physiotherapy, taken over-the-counter drugs and had massage treatments. Because of the nature of the work the plaintiff did before the motor vehicle accident the fact that the level of his pain and discomfort – looked at in isolation – is not great did not mean he did not suffer a loss or diminishment of the capacity to earn income (see supra). But the fact remains that I would describe his pain and suffering as not intense but more of the nagging variety, i.e., always with him but at a very reduced level and causing real and substantial discomfort only when at work or outside of work he does something which is actually too much for him or when at the end of a workday the cumulative effect of his day’s activities and the state of his neck and back sets in. I find that very bad “flare-ups” occur three or four times a year. He uses over-the-counter drugs (amongst other non-prescription drugs) to assist him, as necessary. I accept that his chronic pain and suffering interferes to an extent with his activities when he is not at work. He limits himself to walking and swimming whereas before the motor vehicle accident he played basketball, rode a mountain bike, played racquetball and went camping and hiking. The evidence of the plaintiff, his mother and of the plaintiff’s friend Gordon Papp satisfies me that because of his problems with his neck and back, the plaintiff does less around the house that he and Gordon Papp co-own than would otherwise be the case. (I note here that I have ignored the evidence of the plaintiff’s friend Chris Kokkonis. The plaintiff’s own evidence convinces me that Chris Kokkonis is a witness who thought exaggerating the nature and extent of the plaintiff’s pain and discomfort would assist the plaintiff. It did not.)  I have considered the case law placed before me by counsel. Having considered the whole of it I award the plaintiff $75,000 by way of damages for non-pecuniary loss.

$90,000 Non-Pecuniary Damages for Subcapital Hip Fracture Requiring Replacement

Written by admin on . Posted in ICBC Hip Injury Cases, Occupier's liability claims, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, awarding damages for injuries sustained in a trip and fall incident.
In last week’s case (Etson v. Loblaw Companies Limited) the 76 year old plaintiff tripped and fell over a wooden pallet in an aisle while shopping at the Real Canadian Superstore.  The Court found that both the Plaintiff and Defendant were equally at fault for the incident.
The Plaintiff sustained a subcapital fracture to her right hip.  Initially this was treated with internal fixation although the Plaintiff’s pain continued.  She eventually required a total hip replacement following which she recovered reasonably well.  Madam Justice Fisher valued the Plaintiff’s non-pecuniary damages at $90,000 and in arriving at this figure the Court provided the following reasons:

[61]        Ms. Etson was quite reserved in her descriptions of the pain she experienced as a result of her injuries but there is no question that she suffered a tremendous amount of pain.  The initial injury was obviously very painful and it took Ms. Etson about four months to begin to resume her mobility sufficiently to be able to drive and do things for herself.  She suffered a debilitating set-back in August 2009 when the hardware failed and the femoral head in her hip collapsed.  Her mobility deteriorated and she was again unable to do things for herself.  She suffered tremendous and increasing physical pain for about eight months.  She underwent two additional surgeries.  The first, in January 2010, did not alleviate her pain or improve her mobility.  She did not experience any relief from the pain until April 2010 when she had the total hip replacement surgery.

[62]        Ms. Etson had been a very independent and active woman.  She was involved in painting and the arts and was very active in a local painting club and other community events.  After the accident, she was unable to continue any of this involvement and she had considerable difficulty maintaining her independence.  She had to rely on her sister and Ms. Erikson to help her with meals and other things.  She developed ways to get around her house and she managed as best as she could.  However, it is apparent that the severe limitations on her ability to participate in activities outside her home for close to a year and a half left her feeling very isolated.  Moreover, the accident occurred at a very difficult time in Ms. Etson’s life, when her daughter was in the later stages of a terminal illness.  While she said little about this, it was clear to me that her injuries made it practically impossible for her to visit her daughter before her death in April 2009.  Since the hip replacement surgery in April 2010, Ms. Etson’s condition has improved significantly but she has not yet found the spirit to return to her pre-accident activities and she is still not socially active.  I am satisfied that the injury is a factor here, but I also find that some of this lack of spirit is attributed to other factors, such as the death of her daughter.

[63]        Clearly, Ms. Etson’s injuries have had a profound effect of her life.  She has recovered reasonably well since April 2010 but she still has residual problems.  She is limited in how far she can walk, she still uses a cane when walking for more than two or three blocks and she has a bit of a limp. She is able to live independently now but she is still not able to do heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s comment that “there would have been some residual symptoms during her recovery from the hip replacement of about 3 months”.  This statement is not consistent with his own observations of her condition on September 27, 2010, and is not consistent with Ms. Etson’s evidence, which I do accept.  Her residual symptoms have lasted longer than that and while her prognosis is not entirely clear, it is likely that she will be able to resume most, if not all, of her pre-accident activities by the spring.

[64]        I do accept Dr. Moreau’s opinion that Ms. Etson will not require any further treatment or specific rehabilitation and that it is very unlikely that she will have any further problems or disabilities because of the hip injury…

[70] In this case, the injuries had a profound effect on Ms. Etson’s life.  Her active and independent life style, which was important to her, was seriously compromised for over a year and a half.  During that time she experienced significant pain and had to undergo three surgeries.  She is now able to resume most of her former activities but she still has some residual effects.  Given my findings, I assess non-pecuniary damages at $90,000.

2010 Clawbies Finalist, a Thank You and a 2011 Polar Bear Swim

Written by admin on . Posted in Uncategorized.


Last year this blog was fortunate enough to be awarded a “Clawbie” (Canadian Law Blog Award) for best practitioner’s blog.  This year this blog made it as a finalist in this increasingly competitive category.  I’d like to thank all those that visit this blog regularly and all those who nominated this blog for 2010.
I’d also like to, once again, point to the others that I nominated for consideration this year and to thank Steve Matthews, Jordan Furlong and the others at Stem Legal for considering my blog.  Lastly, congratulations to all of this years winners, finalists, and nominees.
So how does one celebrate a feat such as this?  As per my New Years Day tradition by jumping in a Canadian Lake with my son.  (a rarity for Victoria, Elk Lake had a thin layer of ice over it for this year’s swim)

Happy New Year everyone!

More on Valuing Damages for Modest Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges.  The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement.  The best way to do this is to review as many cases as possible dealing with similar injuries.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.
In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC.  Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash.  The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck.  These were acute for three months and disabled the plaintiff from work during this time.  From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash.   Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60]        Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61]        Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62]        I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63]        In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64]        I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present).  Another great resource is Canlii, a free Canadian legal case-law database.

Transferring To Small Claims Court and the New Supreme Court Rules

Written by admin on . Posted in Civil Procedure, Uncategorized. 127 Comments on Transferring To Small Claims Court and the New Supreme Court Rules


Despite the many changes in the New BC Supreme Court Civil Rules, one area that has not appeared to change relates to transferring a lawsuit from the BC Supreme Court to the BC Provincial Court (Small Claims Court).  The reason for this is that the authority to make such a transfer is not in the Supreme Court Rules, but rather in Supreme Court Act which was not overhauled in the recent transition.
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating that authorities developed prior to the Rules overhaul remain good law.
In today’s case (Madill) the Plaintiff sued the Defendant following a commercial transaction.  The lawsuit, if successful, would have resulted in damages below $25,000 and could have been brought in Small Claims Court.
The Defendant set down a motion to dismiss the Plaintiff’s claim and seeking costs.  Prior to this motion proceeding the Plaintiff brought her own motion to move the claim to Provincial Court.  Master Bouck granted the Plaintiff’s motion and awarded each party tariff costs for various steps taken while the claim was in the Supreme Court.  Prior to arriving at her decision Master Bouck set out the following test for transfer applications under section 15 of the Supreme Court Act.

[10]        Applications to transfer proceedings from the Supreme Court to the Provincial Court are somewhat commonplace. The test to be met is set out in Squamish Ford Sales Ltd. v. Doll, [1997] B.C.J. No. 1562 at paras. 16 and 17:

16 Reference has been made to the decision of Master Chamberlist in Manley v. Burns Lake Community Development Assn. [1996] B.C.J. No. 2236. Smithers Registry No. 8953, where the learned master considers some factors which may be applicable on such applications:

[10]      In Hiebert v. Brown, [1995] B.C.J. No. 2015, in dealing with a similar application, I stated that the court in exercising its powers under s. 13.1, must determine whether in all the circumstances it would be just and convenient to order a transfer to Provincial Court after balancing the prejudices to the respective parties.

[11]      Examples of considerations the court has taken into account in balancing these prejudices include, but are not limited to, the following considerations:

(a)        lateness in making the application for transfer;

(b)        availability of Supreme Court pre-trial procedures;

(c)        number of witnesses and the complexity of the case; and

(d)        potential quantum of damages.

17 The plaintiff refers to the decision of Master Horn in Martin v. Tom [1995] B.C.J. No 2342, I turn for assistance to the decision of Master Powers in Long v. Jackson (1994) 88 B.C.L.R. (2d) 46. In that judgment he set forth a number of matters which required consideration in relation to an application to transfer to the Provincial Court. I will not repeat all those considerations. The considerations which most affect me are these:

1)         There will likely be no delay in this matter coming for trial if the action is transferred to the Provincial Court.

2)         While this is a proper case for the consideration of a jury, being an issue of quantum of damages only, a jury trial would be far more expensive and lengthy.

3)         Discoveries have been completed and so neither party will be prejudiced by the paucity of discovery procedures in the Provincial Court.

4)         The application is brought well before the trial date.

[11]        In this case, the application is brought early in the proceeding; neither party wishes to utilize the Supreme Court pre-trial processes; and there is no evidence of any delay in having the matter adjudicated in Provincial Court.

"Demystifying" Mild Traumatic Brain Injury

Written by admin on . Posted in ICBC Head Injury Cases, ICBC Privacy Issues, ICBC Wage Loss, Uncategorized.


(Update: the Defendant’s Appeal of the below judgement was dismissed by the BC Court of Appeal on February 7, 2012)
Many of you may be aware of ICBC’s current “demystifying” campaign.   There are many misunderstood topics related to injury lawsuits and one of the most prominent is that of mild traumatic brain injury (MTBI).  Reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demystifying some of the arguments that are commonly raised in opposition to these claims.
In today’s case (Madill v. Sithivong) the Plaintiff was involved in a 2004 BC motor vehicle collision.  The Plaintiff’s vehicle was struck on the passenger side by the Defendant’s vehicle.  The issue of fault was admitted by the Defendant with the trial largely focussing on the value of the Plaintiff’s claim.
The collision was not significant, from a vehicle damage perspective, causing little over $1,700 in damage to the Plaintiff vehicle.   Despite this the Plaintiff suffered a traumatic brain injury in the crash.  ICBC argued that the injuries were not serious in part because the vehicle damage was modest, the Plaintiff had a ‘normal‘ Glasgow Coma Scale score of 15/15 noted on the ambulance crew report and that the hospital records relating to the treatment of the Plaintiff noted that he suffered from “No LOC (loss of consciousness)” and “zero amnesia“.
The Plaintiff called evidence from Dr. Hunt, a well respected neurosurgeon, who gave evidence that the above facts were not determinative of whether the Plaintiff suffered from serious consequences related to MTBI.  Madam Justice Morrison was persuaded by Dr. Hunts’ evidence and accepted that the Plaintiff suffered from long term consequences as a result of an acquired brain injury.  In rejecting the defence arguments Madam Justice Morrison provided the following ‘demystifying‘ reasons:

[112]     Dr. Hunt said he tries to concentrate on the individual.  He finds it helpful to see the notes of the family doctor, which deal with initial complaints, as do the notes of the ER doctor and responders.  But he notes that those doctors are very busy, and things get overlooked.  The same is true with an ambulance crew.  Dr. Hunt stated there may be no loss of consciousness, but there may be a loss of awareness.  An ambulance crew may give a 15 score for the Glasgow scale, indicating normal, but that could be misleading.  He also noted that someone may be described as being in good health pre-accident, but that would not mean he would not have issues.

[113]     Dr. Hunt disagreed that the best evidence of whether the plaintiff was an amnesiac, were notes at the hospital of “no LOC” and “zero amnesia”.  It was the evidence of Dr. Hunt that no matter how many times you see those terms, that a patient is alert and wide awake, that sometimes in looking at crew reports, the necessary information is not there.  A person does not need to strike his head for a concussion to have occurred.  It need only have been a shaking.

[114]     It is important to explain what a mild traumatic brain injury is, he stressed; Dr. Hunt referred to the many concussions in sports.  He said it is important to look at what happened following the accident, what symptoms have occurred and are continuing to occur.  Patients often deny a loss of consciousness or a loss of awareness, and it may be so fleeting that they may well be unaware.  But if the head has been shaken or jarred enough, this will equal a concussion, which is the same as a mild traumatic brain injury.  There may be no indication of bruises on the head, but it still could be a concussion.  Dr. Hunt noted that something prevented the plaintiff from exiting the vehicle, so the Jaws of Life was used.

[115]     Dr. Hunt noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion in his initial report, but it was the opinion of Dr. Hunt that Dr. Tessler was not up to date on mild traumatic brain injuries.

[116]     In his evidence, Dr. Hunt listed some of the symptoms that are compatible with a concussion having occurred:  headaches, altered vision, balance difficulties, general fatigue, anxiety, memory disturbance, inability to manage stress.  “A concussion is a mild traumatic brain injury.  We no longer grade concussions.”

[117]     I found Dr. Hunt to be an excellent witness.  He was cautious, detailed, thoughtful, low key, thorough and utterly professional.  In cross-examination, he gave a minor clinic on mild traumatic brain injuries.  He was subjected to a rigorous, lengthy and skilful cross-examination, which only served to expand upon and magnify his report and opinions.

[118]     He commented on the history of Mr. Madill prior to the accident, pointing to a number of things that may have caused excessive jarring or shaking of the head, even if there had been no symptoms of concussion.  He believes that the first responders’ observations are not always accurate as to what actually happened.  He said he himself may not have identified problems of concussion at the scene of the accident.  Ninety percent of people with concussions have headaches.  They have difficulty describing the headaches, and they are not the same as migraine or tension headaches.

[119]     Dr. Hunt was further critical of Dr. Tessler in opining that Dr. Tessler had diluted his opinion, and that he had concerns with the report of Dr. Tessler.  He felt that Dr. Tessler was still “in the dark ages” with regard to mild traumatic brain injuries, that he has not had the advantages that Dr. Hunt has had in working with sports brain injuries.  “Concussion is cumulative.”

[120]     I found the report and the evidence of Dr. Hunt persuasive.  He came across as an advocate of a better understanding of concussions or mild traumatic brain injuries, not as an advocate on behalf of the plaintiff.

In addition to the above, two other topics were of interest in todays’ case.  Evidence was presented by ICBC though private investigtors they hired who conducted video surveillance of the Plaintiff.  The Court found that this evidence was of little value but prior to doing so Madam Justice Morrison made the following critical observations:

[74] Much of the videotaping occurred while both the plaintiff and the private investigator were moving on streets and highways, driving at the speed of other traffic.  The investigators testified they drove with one hand on the wheel and the other hand operating the video camera, up at the side of their head, to allow them to view through the camera what they were taping.  That continues to be their practice today, according to at least one of the investigators, which was interesting, considering from whom they receive their instructions, a corporation dedicated to road safety.

Lastly, this case is worth reviewing for the Court’s discussion of diminished earning capacity.  In short the Plaintiff was self employed with his spouse.  Despite his injuries he was able to continue working but his spouse took on greater responsibility following the collision.  The Court recognized that the Plaintiff suffered from a diminisehd earning capacity and awarded $650,000 for this loss.  Paragraphgs 193-210 of the judgement contain the Court’s discussion of this topic.

Interest on Disbursements in Injury Claims Recoverable "As a Matter of Principle"

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 48 Comments on Interest on Disbursements in Injury Claims Recoverable "As a Matter of Principle"


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating a welcome development in BC personal injury law.
As discussed on previous occasions, injury lawsuits can be expensive and oftentimes individuals rely on their lawyers to finance the costs necessary to prosecute their claim.  These costs can easily add up to tens of thousands of dollars and significant interest can accrue on these expenses (called disbursements).  After claim settlement or trial a debate often arises as to who should pay the interest on disbursements.
Earlier this year Mr. Justice Burnyeat held that “The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.” Last week a case was released going further holding that in the appropriate circumstances interest charged by lawyers for financing disbursements can be recoverable as a disbursement.
In last week’s case (Basi v. Atwal) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff hired a lawfirm that financed the prosecution of the claim.  The lawfirm did so through a line of credit which in turn charged interest.  The interest was passed on to the client.  After settlement ICBC argued that the interest charged was not a reasonable disbursement.  Registrar Bolton disagreed and provided the following instructive reasons:
…In… Milne v. Clarke [2010], BCSC 317, the learned judge quite clearly says that the successful party is entitled to interest on a specific disbursement where the provider of the service in question had charged interest to counsel for that party.
I see no reason in principle to distinguish this decision on the basis that in the Milne case, the interest has been charged by the provider of the service to the law firm and, therefore indirectly to the client, whereas here the interest is being charged directly by the lawyers pursuant to an agreement they have with their own bank.
So I am satisfied that the charge is potentially proper, give the appropriate circumstances.  Here, the circumstances are that the law firm has an arrangement with its own bank to fund disbursements.  They are funded on the basis of an agreement of paying six percent over prime.  I am satisfied that that is a reasonable interest rate in these circumstances…
So to summarize: first of all, I accept that the principle of allowing interest is one that the law recognizes, at least since this decision of Mr. Justice Burnyeat.  Secondly, I am satisfied that the accounting that would be required to satisfy the court that the charge does relate specifically to this particular file, has been properly done.  Thirdly, I am satisfied that the interest rate being charged by the bank is reasonable…
In those circumstances, that only leaves the question of amount to be decided…as a matter of principle, or law, I suppose, I am satisfied that a claim for interest here is proper.
As readers of this blog know, I like to link to the full judgments of the cases discussed here.  As of the date I write this post Basi v. Atwal remains unpublished.  I will link to the case should this change but in the meantime am happy to e-mail a full copy of the case to anyone who may need it.

Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required

Written by admin on . Posted in BC Supreme Court Costs Cases, ICBC Privacy Issues, Uncategorized. 49 Comments on Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required


If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue.  As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements.  This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision.  In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000.   About 16 months later the Plaintiff accepted the offer.  The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.
After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000.   Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff.  These accounts totalled almost $20,000.
The Plaintiff argued that ICBC’s disbursements were unreasoble.  Eventually the BC Supreme Court was asked to decide the issue.  Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000.  In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11]         As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12]         I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

Plaintiff's "Disadvantaged" Financial Circumstances Disentitle ICBC to Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 40 Comments on Plaintiff's "Disadvantaged" Financial Circumstances Disentitle ICBC to Costs


There have been many cases dealing with “the relative financial circumstances of the parties” focussing on whether a Defendant is insured in deciding the costs consequences after trials with formal settlement offers. (The BC Court of Appeal weighed in on this issue earlier this year deciding insurance can in fact be considered).  There have not, however, been many cases dealing with the Plaintiff’s finances (or lack thereof) as a compelling circumstance.  This overdue issue was addressed earlier this week by the BC Supreme Court, Victoria Registry.
In today’s case (Dickson v. ICBC) the Plaintiff was injured in a bicycle accident involving an unknown motorist.  He sued ICBC under s. 24 of the Insurance (Vehicle) Act.  ICBC denied fault on behalf of the unknown driver.  Prior to trial ICBC offered to settle the issue of fault on a 50/50 basis.  The plaintiff rejected this offer and went to trial where Madam Justice Russell found both parties equally at fault.
Typically, when ICBC matches or beats their formal offer at trial, ICBC becomes entitled to post offer costs.  Madam Justice Russell refused to follow this usual course, however, noting that the Plaintiff’s financial circumstances put the plaintiff at a ‘serious disadvantage‘.  In awarding the Plaintiff costs to the time of the offer and depriving both parties of post offer costs Madam Justice Russell held as follows:

[13]    It is my view that the plaintiff’s position is one of serious disadvantage as a result of the accident.  I recall that he was unable to work for a long period of time as a result of his injury and was still unable to return to work by the time of the hearing.

[14]    The plaintiff is the sole support of his family and either had run out of disability benefits or was close to the end of those benefits by the time of the summary trial…

[17]    I view the financial circumstances of the plaintiff as compelling on the issue of whether double costs should be awarded.

[18]    In Osooli-Talesh v. Emami, 2008 BCSC 1749, the offer to settle matched the judgment achieved and Sigurdson, J. concluded that the court may award payment of double costs where an offer to settle matches the results at trial.  However, he went on to consider all the factors listed in Rule 37B.  He determined that the parties had divided success and should therefore bear their own costs.

[19]    I am guided by that decision and consider it apposite to the circumstances of this case.

[20]    I award costs of this case to the plaintiff to the date of the receipt of the defendants’ offer to settle and order both parties to bear their own costs thereafter.

Cross Examination Beats Up RCMP Officer's Injury Claim

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As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.
ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:
[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…
[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…
[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…
[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…
[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…
[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.
Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.