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More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims


Further to my two recent articles discussing this topic (these can be found here and here) reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, demonstrating yet again the powerful impact out of court statements can have in an ICBC claim.
In today’s case (Aymont v. Capp) the Plaintiff sustained serious injuries in a 2004 BC motor vehicle collision.  She was driving a Mazda Protege and was exiting a gas station parking lot.  She intended on turning left.  As she entered the roadway the Defendant approached from her left hand side.  A ‘t-bone’ type of collision occurred.
The Plaintiff testified at trial that when the Defendant’s vehicle struck hers she was at a stop and her vehicle had not entered the roadway and was “two feet before the fog line“.  The Defendant disagreed and testified that as he approached the gas station the Plaintiff pulled her vehicle into his lane of travel leaving inadequate time to avoid the collision.
During trial the Plaintiff was confronted with various out of Court statements attributed to her where she discussed the collision.  These included statements given to ICBC, a police officer and a chiropractor.  These previous statements were summarized as follows by Madam Justice Gropper:

[9]             The day following the accident, May 15, 2004, Ms. Aymont went for treatment to her chiropractor’s office, Dr. Susan Holroyd.  She says that she felt dizzy and nauseous, disoriented and in a great deal of pain that morning.

[10]         Dr. Holroyd produced her clinical records, which included a “motor vehicle accident history” form.  Ms. Aymont says that she does not recall the form or filling it out.  She cannot recall if it is her handwriting on the form or not.  The handwritten notations (in italics)  on the form state, in relation to the accident:

State How Accident Happened in your own words.

I had stopped at the entrance of gas st. looked both ways saw no one and began onto road – was hit by a truck travelling very fast.

Where you stopped Yes/No?

No [circled]

Estimate your speed?

10 km/h

Brakes on Yes/No?

No [circled]…

[13]         Cst. Rudy Andreucci telephoned Ms. Aymont the day following the accident and they arranged to meet on Sunday, May 16, 2004 at the RCMP Detachment in Westbank.  Cst. Andreucci testified that the purpose of the meeting was to give Ms. Aymont a traffic violation ticket. Cst. Andreucci served a violation ticket on Ms. Aymont for a breach of s. 176(2) of the Motor Vehicle Act: emerging vehicle: failure to yield.  He noted on the reverse side of the ticket what Ms. Aymont said to him:

04-5-16 V.T issued at office dri Nancy Aymont advised she just didn’t see him.  She knows better-than go on without being sure….

[15]         On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file.  Another adjuster was assigned to Mr. Capp’s file.  Mr. Bonner said that he asked questions and typed the answers into the ICBC note taking system on his computer.  He prepared a sketch based on the information provided to him by Ms. Aymont.  In the statement Mr. Bonner recorded Ms. Aymont stating:

I looked to my right first, and then the left and Bartley Road was vacant, and I thought to myself how often does that happen on a Friday afternoon.  After looking right, then left, I looked right again, and that is the last thing I remember…  If the other driver wasn’t going so fast he probably could have stopped.  My husband drove the road the next day.  At the 50 km/h speed limit, and stopped without skidding before the driveway… I was knocked out and can’t say how far I pulled forward from the exit onto Bartley Road before being hit.

[16]         Ms. Aymont also provided a rough sketch showing where the vehicles were as she approached the exit.

[17]         Ms. Aymont does not recall saying “I can’t say how far I pulled out from the exit onto Bartley before being hit.”

[18]         Mr. Bonner produced a hard copy of the statement for Ms. Aymont to review.  She thought that the second page statement was “all mixed up.”  Ms. Aymont says she made certain corrections to the statement in handwriting.  The last sentence of the statement is “I have nothing to add to this statement, which is true to the best of my memory.”  Ms. Aymont signed the statement….

The Court ultimately rejected the Plaintiff’s evidence and accepted the Defendant’s.  This verdict was largely reached based on the Plaintiff’s prior statements.  Madam Justice Gropper gave the following useful reasons demonstrating the damage that can be done with ‘prior inconsistent statements‘:

[77]         Mr. Capp’s evidence that the Aymont vehicle was moving when he first observed it is consistent with the statements that Ms. Aymont made to her chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete, she says that she was not stopped and was moving at about 10 km/hour.  In her statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto Bartley Road before being hit.  All of these statements are consistent with the circumstances that Mr. Capp describes.

[78]         I find as a fact that Ms. Aymont was not stopped “well before the fog line”.  She was moving from the exit into the southbound lane of travel on Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was not on the brake.  She was not looking in the direction of the oncoming traffic, but was engaged in a conversation with her son Joel who was sitting in the passenger seat, and had turned her face toward him to talk about his drink.

[79]          Ms. Aymont did not yield the right of way to Mr. Capp who was the dominant driver. …

[82] In all of the circumstances, I find the plaintiff is 100% at fault for this accident.

This case is also worth reviewing for the Court’s discussion of the duties of expert witnesses.  Both the Plaintiff and the Defendant retained experts to give accident reconstruction evidence.  The Plaintiff’s expert was soundly criticized for giving evidence as an “advocate” instead of a neutral witness.  The criticism can be found at paragraphs 66-73.

BC Injury Law Podcast – Pre-Existing Conditions and Your Personal Injury Claim

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


This is my latest in a series of podcasts discussing topics of interest in BC personal injury lawsuits.
Today I address pre-existing injuries and how these can be relevant in assessing damages in personal injury claims.
You can listen by clicking on the following link:  bc-injury-law-blog-pre-existing-conditions
If you want to learn more about pre-existing conditions and their treatment in personal injury lawsuits you can click here to access my archived posts on this topic.
UPDATE:  Since initially uploading this podcast the BC Court of Appeal released important reasons addressing injuries with multiple causes.  You can click here to read my article discussing this important case.

A Lesson in Math: Winners and Losers in Personal Injury Lawsuits

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.


When a personal injury claim goes to trial there is a winner and a loser.  Who the winner is, however, is not always apparent by reading the Court judgement.  To know who the winner really is you have to know the behind the scenes formal settlement offers.
Reasons for judgment were released today demonstrating, yet again, the steep costs Plaintiffs can face when on the losing end of a BC personal injury lawsuit.
In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Before trial the Defendants made a formal settlement offer for $20,000.  The Plaintiff rejected this offer and went to trial.  After 10 days of trial a BC Jury awarded $2,200.  The Defendant was awarded ‘costs’ from the date of the formal offer onward.  (You can click here to read my summary of the costs judgement).
On the face of it the Plaintiff clearly lost because she was awarded far less by the Jury than the settlement offer.  But the full extent of the loss is far greater than the difference between $20,000 and $2,200.  The Plaintiff actually ended up owing the Defendant money for this result.  How much money?  Approximately $40,000.
You can read today’s judgment in full to see the types of items a losing litigant can end up owing the winning side to a lawsuit and to see just how quickly a ‘costs’ award can add up.
Today’s case helps illustrate an important point I’ve previously stressed.  Before a case goes to trial it is important to fully consider the potential risks and rewards including the significant toll a costs award can have.  Without knowing and weighing these risks it is very difficult to make an informed choice about whether to settle or proceed to trial.

The Crash Was My Fault, on Second Thought…

Written by admin on . Posted in Uncategorized.


After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

Pain and Suffering Without Objective Signs of Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Wage Loss, Uncategorized. 47 Comments on Pain and Suffering Without Objective Signs of Injury


The easiest personal injury cases to prosecute are those involving objective injuries.  If a person suffers a broken arm or leg in a car crash there is no dispute as to what the injury is or what caused it.  There may be some disputes regarding the consequences of the injuries but generally there is a lot of room for agreement in these types of lawsuits.
On the other end of the spectrum are chronic pain cases.  Many people involved in traumatic events go on to suffer long term chronic pain.  The pain can be invasive and sometimes disabling.  It can interrupt domestic, vocational and recreational activities, it can even negatively impact personal relationships.   Often the source of chronic pain cannot be objectively identified and people suffering from chronic injury face not only the pain but also the stigma that they are somehow exaggerating or even faking their injury.  This skepticism can take a further toll and add to the cycle of chronic pain.
These cases bring challenges in prosecution and create a sharp focus on plaintiff credibility.   Despite their challenges chronic pain disorders can be properly compensated at trial as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Kasidoulis v. Russo) the Plaintiff was involved in a 2005 intersection crash.  Fault was admitted by the driver of the opposing vehicle.  The trial focused on the extent of the Plaintiff’s injuries and their value.
The collision caused several injuries to the Plaintiff which eventually turned into a chronic pain disorder.   As is sometimes the case there was a lack of objective proof of the Plaintiff’s injuries.  Dr. Travlos, the Plaintiff’s treating physiatrist gave the following evidence about the Plaintiff’s injuries:

[21] Dr. Travlos was of the opinion that the complaints reported by Ms. Kasidoulis to Dr. Kneifel, which included headaches, chest pains, neck pains; back pains and emotional difficulties were a direct result of the accident.  He was unable to identify any clinical or objective findings with respect to the back pain but was clearly of the view that Ms. Kasidoulis was genuinely experiencing the pain that she reported.  There does not seem to be any serious dispute between the parties that Ms. Kasidoulis’ pain is genuine and I accept that this is the case.

[22] In his second report Dr. Travlos concluded that Ms. Kasidoulis suffers from chronic pain disorder.  That pain was affecting her daily activities, both social and work related.  He was of the view that Ms. Kasidoulis would benefit from a long-term “longitudinal” course of treatment designed to permit her to manage and cope with her pain.  On the other hand, Dr. Travlos was clearly of the view that there should be no expectation that the pain would resolve and that it was no more probable than not that she will continue to have permanent on-going pain.

[23] In both his reports, and in particular in his March 2010 report, Dr. Travlos focused considerable attention on the necessity of Ms. Kasidoulis undergoing treatment and having access to the resources necessary to reduce the stressors in her life.  As I read Dr. Travlos’ opinion, he was of the view that if Ms. Kasidoulis is given the opportunity to access a reasonable long-term treatment plan and the resources to relieve her household responsibilities, she could expect significant improvement in her ability to function and in her ability to cope with her pain.

[24] Dr. Travlos was of the view that it was unrealistic to expect that Ms. Kasidoulis would ever be able to work full-time, but that it was reasonable to anticipate that she could work between three and four days a week if the therapies that he recommended were pursued and were effective.

Mr. Justice Sewell accepted this evidence and awarded the Plaintiff over $900,000 for her injuries and resulting disability including $90,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In arriving at this verdict the Court made the following comments about causation and compensation for chronic pain cases with lack of objective proof:

[36] As is not uncommon in cases of this sort, the critical issue in this case is the extent to which the injuries Ms. Kasidoulis suffered in the accident are the cause of the difficulties described in the evidence…

37]         This case therefore requires consideration of the law as laid by the Supreme Court of Canada and our Court of Appeal with respect to causation.  The law with respect to causation has been recently addressed and reviewed in Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke, 2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

[38]         These cases establish the proposition that to impose liability on the defendant  I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms but for the accident or, in other words, that the injuries she suffered in the accident were a necessary cause of her post accident symptoms.

[39]         I find that Ms. Kasidoulis suffers from debilitating mid and low-back pain.  This pain and attendant low energy have had a significant impact on her life.  I find that the symptoms being experienced by Ms. Kasidoulis are an indivisible injury which would not have occurred but for the injuries she suffered in the motor vehicle accident.

[40]         I base this conclusion on a comparison of Ms. Kasidoulis’ energy and capabilities before and after the accident.  I accept her evidence that she is suffering debilitating back pain.  I also rely on Dr. Travlos’ conclusion that Ms. Kasidoulis is suffering from chronic pain syndrome.  I can see nothing in the evidence which supports the assertion that Ms. Kasidoulis would be experiencing the pain or the level of disability she currently experiences had she not been injured in the motor vehicle accident.  I therefore conclude that the defendant is fully responsible for the consequences of Ms. Kasidoulis’ present condition.

[41]         I make this finding notwithstanding the lack of objective clinical evidence of serious injury.  I note that neither Ms. Kasidoulis nor Dr. Travlos were cross- examined with respect to the genuineness of Ms. Kasidoulis’ reported symptoms.  In his cross-examination of Dr. Travlos, Mr. Robinson did establish that there was a paucity of objective evidence of injury present.  I note, however, that there is no indication that Ms. Kasidoulis was in any way feigning the symptoms she is experiencing.  Given this fact and the fact that there was ample evidence before me contrasting Ms. Kasidoulis’ personality and abilities before the accident from those she presently possesses and demonstrates, I have no hesitation in concluding that the difficulties that she now faces would not have been experienced but the wrongful conduct of the defendant.

In addition to the above this case is worth reviewing in full for the Court’s discussion of damages for ‘diminished earning capacity‘ at paragraphs 52-65.  The Plaintiff was awarded $550,000 for diminished earning capacity despite being able to continue working in her own occupation because the Court was satisfied that the accident related injuries would prevent the Plaintiff from working on a full time basis as a teacher and instead would be limited to working on a part time on-call basis.

Pedestrian Struck in Cross Walk Found 75% At-Fault for Crossing Against "Don't Walk" Signal

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Pedestrian Struck in Cross Walk Found 7555 At-Fault for Crossing Against "Don't Walk" Signal


Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding a Plaintiff just over $10,000 for injuries and losses sustained in a cross-walk collision.
In today’s case (Furness v. Guest) the Plaintiff pedestrian was struck by the Defendant’s vehicle as he was trying to cross Nicol Street in Nanaimo, BC.  When the Plaintiff stepped off the curb to cross the street the “don’t walk” signal was flashing but he was not aware of this.  The Defendant was stopped in a tractor-trailer waiting for a green signal.  As the Plaintiff walked in front of the Defendant’s vehicle an advance green arrow illuminated permitting the Defendant to start driving.  The Defendant did not see the Plaintiff and struck him with his vehicle.
Both liability (fault) and quantum (value) were at issue in this trial.  Mr. Justice Halfyard held that the Defendant driver was careless for failing “to keep a proper lookout” and for failing to see the Plaintiff who was “there to be seen“.
The Plaintiff acknowledged that he was also partially at fault.  The Court was asked to determine how much each party was to blame.  Mr. Justice Halfyard found that the Plaintiff was more at fault and apportioned his blame at 75%.  In reaching this distribution of fault the Court reasoned as follows:

[58]         I find that the plaintiff’s degree of fault for the accident is considerably greater than the degree of fault of Mr. Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr. Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.) and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.

[59]         In my opinion, liability should be apportioned as to 25% against Mr. Guest, and 75% as against Mr. Furness, and I so order.

The Court then dealt with the value (quantum) of the Plaintiff’s claim.  The Plaintiff’s injuries and their course of recovery were summarized as follows:

[60]         Most of the injuries sustained by the plaintiff are not in dispute and I find them to be the following:

a)    undisplaced fracture of the posterior aspect of the medial femoral condyle of the right knee;

b)    tiny fracture of the very lateral aspect of the lateral tibial plateau, which was undisplaced;

c)     injury to the soft tissues in and around the right knee joint including a tear of the posterior horn of the medial meniscus;

d)    other minor contusions and abrasions.

[61]         The plaintiff complained of ongoing pain in his right ankle, which he attributes to the accident of February 13, 2007. ..

[81] I find that, by the time of trial, the plaintiff had substantially recovered from the injuries he sustained in the accident of February 13, 2007. There is no medical opinion evidence which causally connects the plaintiff’s present complaints to his injuries of February 13, 2007. Nor is there any evidence of objective medical findings that confirm the plaintiff’s ongoing complaints of pain in his knee. In these circumstances, I am not satisfied that the necessary causal connection between the accident and the plaintiff’s present complaints of physical pain has been proved. However, I do accept that the plaintiff is still experiencing some intermittent psychological effects from the accident, in the form of nightmares and fear of crossing the street. I find that these psychological effects are diminishing, and should not persist for much longer. The evidence does not establish a real and substantial possibility that these psychological symptoms will persist well into the future.

Mr. Justice Halfyard valued the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000.  The Court then reduced this award by 75% to take into account the Plaintiff’s own blame for his injuries.

Vancouver's News 1130 Picks Up on Story About Potential Lawsuits for Charter Breaches

Written by admin on . Posted in BC Injury Claims Media Archives, Damages for Charter Breaches, Uncategorized.


Further to my article published last week, the Supreme Court of Canada will soon decide whether damages can be awarded in lawsuits against the Government for breach of rights under the Canadian Charter of Rights and Freedoms.
Shane Bigham of Vancouver’s News 1130 picked up on the story and ran a piece last week bringing further attention to this matter.  Shane was kind enough to provide me with a clip of this story and you can listen to it by clicking on the following link( bc-injury-law-civil-lawsuits-against-police-for-charter-breaches.)
The bottom line is that actions which violate individuals rights under the Canadian Charter of Rights and Freedoms may bring rise to lawsuits for civil damages.  Once the Supreme Court of Canada gives their decision in the Vancouver v. Ward appeal there will be welcome clarity in this area of the law.
While I don’t necessarily think that the floodgates will open if these types of lawsuits get the green light from the Suprene Court of Canada public institutions (police departments in particular) need to rethink the potential financial exposure their actions bring when creating policies that may violate rights under the Charter.
Mass searches at public events (such as alcohol searches at Canada Day festivities and the Celebration of Light) could give rise to numerous lawsuits.   Before deciding on the protocol that will be employed by police at these types of public events the RCMP and municipal police forces ought not overlook the potential implications of civil damages for Charter breaches.

Settlement Approved in Woodlands Abuse Class Action Lawsuit

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

The Woodlands School was a facility operated by the Province of British Columbia until 1996.  It housed children and adults with mental and physical disabilities.
Two well documented investigative reports highlighted a sad history which involved systemic physical, sexual and psychological abuse perpetrated against these vulnerable residents.  The reported abuse included “hitting, kicking, smacking, slapping, striking, restraining, isolating, grabbing by the hair or limbs, dragging, pushing onto table, kicking and shoving, very cold showers, very hot baths resulting in burns to the skin, verbal abuse including swearing, bullying and belittling, inappropriate conduct such as extended isolation, wearing shackles and belt-leash with documented evidence of injuries including bruising, scratches, broken limbs, black eyes and swollen face.”
A class action lawsuit was launched in 2002 seeking compensation for the Victims of the Woodlands School.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, (Richard v. British Columbia) approving a settlement for the survivors.
The settlement allows each survivor who was abused after August 1, 1974 to receive between $3,000 and $150,000 in compensation.  (the reason for the August 1974 cut off is because people abused before that time don’t have the right to sue the Province of British Columbia as a result of a law known as The Crown Proceeding Act).  In all this is a class of 1,168 individuals.
The approved settlement does not award each member a specific dollar figure, rather it approves a system in which each class member can efficiently seek access to compensation based on a negotiated system which focuses on the nature of abuse they suffered.
This settlement is an example of a creative resolution to a series of very difficult claims many of which may not have succeeded at individual trials due to technical issues of evidence and limitation defenses.  This judgement is worth reviewing in full for anyone involved in or interested in cases dealing with damages suffered through historic acts of institutional physical and sexual abuse.
Mr. Justice Bauman concludes his reasons by congratulating the parties on reaching compromise in the claim which is a sentiment well worth repeating.

ICBC Claims and Medical Treatment; How Often Should I See My Doctor?

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 106 Comments on ICBC Claims and Medical Treatment; How Often Should I See My Doctor?


One common question I’m asked by people advancing ICBC injury claims is “how often should I see my doctor?“.  The short answer is “as often as necessary to properly diagnose and treat your injuries“.  Recovery should always be the main reason behind physicians visits, not litigation.
There is no magic number of times you need to see a doctor in order to be properly compensated for your injuries.  A person who sees their doctor 100 times prior to settling may receive less than a person who only receives medical attention a handful of times.  The severity and duration of injuries are some of the most important factors when valuing loss, not the number of medical treatments.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, highlighting this.
In today’s case (Co v. Watson) the Plaintiff was involved in a “T-Bone” collision in 2006.  Fault was admitted by the offending motorist.  The trial focused on the value of the Plaintiff’s ICBC claim.   Mr. Justice Burnyeat found that the Plaintiff suffered from shoulder pain, back pain, neck pain and some sleep disturbance.  Some of the injuries improved prior to trial while other symptoms continued to bother the Plaintiff.
The Defendant argued that since the Plaintiff did not “regularly” attend to be treated by her GP that the Court should be weary of the Plaintiff’s credibility.  Mr. Justice Burnyeat rejected this argument and went on to award the Plaintiff $27,500 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In addressing the topic of frequency of medical treatment the Court stated as follows:

[26]         Ms. Co did not regularly attend to be treated by Dr. Porten.  The credibility of Ms. Co was put in questions by Mr. Watson as a result.  In this regard, I adopt the following statement made in Mayenburg, supra, where Myers J. stated:

The defendants challenge the credibility of Ms. Mayenburg. They point to the limited number of times she visited physicians to complain about her pain. They also refer to the fact that she did not raise the issue of her injuries when she visited Dr. Ducholke on several occasions for other unrelated matters.

I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholke testified how her time with patients was limited.

In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

(at paras. 36-38).

[27]         Taking into account the injuries suffered by Ms. Co as a result of the accident and the duration of the suffering relating to those injuries, I assess the general damages of Ms. Co at $27,500.00.

Unreasonable Search and Seizure, the Charter of Rights, and Civil Suits for Damages

Written by admin on . Posted in Damages for Charter Breaches, Uncategorized. 2 Comments on Unreasonable Search and Seizure, the Charter of Rights, and Civil Suits for Damages


Although the Canadian Charter of Rights and Freedoms has been in force for almost 30 years the legal remedies available to Canadians for having their Charter rights violated are still developing.  One question that needs to be definitively answered is whether Canadians are entitled to damages in civil suits for having their Charter Rights violated.
Reasons for judgement are expected to be delivered shortly by the Supreme Court of Canada giving guidance in this important area of law.   In the soon to be released decision (Ward v. British Columbia) the Plaintiff was arrested and strip searched.  He successfully sued with the trial judge finding that the strip search violated the Plaintiff’s Charter rights and awarded him damages for this.  Both parties appealed and in a split decision the BC Court of Appeal upheld the award of damages for Charter Breach with the majority finding as follows:

[64]           I do not suggest that an award of damages is the appropriate remedy in all cases in which a government actor has breached a person’s Charter rights.  Section 24(1) vests the court with a broad judicial discretion to grant “such remedy as the court considers appropriate and just in the circumstances.”  Appropriate and just remedies must be determined judicially from case to case.  In the present case, I would not interfere with the trial judge’s exercise of discretion to award damages for the unreasonable search.

If the Supreme Court of Canada upholds this judicial discretion a very meaningful remedy will be available for individuals who have their Charter rights breached by Government bodies.
With this background in mind I want to share some thoughts on various Canadian Police Departments and their policies to conduct warrantless searches of individuals at public events.
At any large gathering (The Olympics, Canada Day celebrations, the G20, the Vancouver Celebration of Light to name a few) many people come together in one spot.  Most are well intentioned, some are not.  Alcohol often fuels poor behaviour.  Police have the difficult job of controlling the crowds.
Sometimes the police, however well intentioned, go further than their powers allow and conduct random, warrantless and potentially unlawful searches of individuals.  Such a policy was put in place by the Victoria Police Department for the 2010 Canada Day Celebrations as was recently highlighted by the BC Civil Liberties Association.
In short the police planned on conducting numerous warantless searches of individuals in an effort to control how much alcohol was being brought into the downtown core during the celebrations.  While there may be mixed feelings about this by many members of the public if the Supreme Court of Canada upholds the ability of Courts to award damages for violations of Charter rights the Victoria Police Departments actions can expose the City to numerous claims.
Clarity will be welcome and I will continue to monitor this interesting area of the law as it develops.  In the meantime police departments throughout Canada ought to take into serious consideration the fact that their policies when policing large events may expose them to significant lawsuits for damages if they choose not to respect individuals rights under the Canadian Charter of Rights and Freedoms.
Instead of conducting wide scale warrantless searches it may be wise to follow the recommendation of the Commission for Public Complaints Against the RCMP who in 2008 concluded that “until such time that the required legislative bases are put in place, the RCMP’s participation in preventative and early interdiction liquor strategies in BC be limited to police presence and that searches only be conducted when the RCMP members have the requisite grounds under the applicable legal authority“.