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BC Injury Law Podcast: Non-Pecuniary Damages

Written by admin on June 11, 2010. Posted in BC Injury Claims Media Archives, Uncategorized.

This is the first in what I intend to be a series of podcasts discussing topics of interest involving ICBC and other BC personal injury claims.
Today’s topic is valuing a person’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of injuries caused by the fault of another. To listen simply click on the following link: bc-injury-law-podcast-non-pecuniary-damages
The case discussed in this Podcast is Stapley v. Hejslet, 2006 BCCA 34 and can be found by clicking here.

ICBC Claims, Uninsured Motorists, and the Definition of "Highway"

Written by admin on June 11, 2010. Posted in Uncategorized. 60 Comments on ICBC Claims, Uninsured Motorists, and the Definition of "Highway"

Did you know that if you are injured in BC by a motorist who does not have any insurance at all you can still seek coverage of your tort claim directly from ICBC? The reason you can do this is because of Section 20 of the Insurance (Vehicle) Act which requires ICBC to pay the damages directly when an uninsured motorist negligently injures others.
There are limits to ICBC’s liability under this section, and one such limitation is that the collision has to occur on a ‘highway‘. If the crash does not occur on a ‘highway‘ then ICBC does not need to pay damages under section 20. Reasons for judgement were released today by the BC Supreme Court, Prince George registry, dealing with exception.
In today’s case (Pierre v. Miller) the Plaintiff was injured in a motor vehicle collision. The collision took place on Finlay Forest Service Road, a fairly remote road in British Columbia. The Defendant was not insured and ICBC defended the case directly by the authority given to them under section 20 of the Insurance (Vehicle) Act. ICBC’s lawyer brought a motion for a declaration that Finlay Forest Service Road is not a highway.
Mr. Justice Meiklem agreed with ICBC finding that the road was “a forest service road” and therefore not a highway and ordered that ICBC did not have to pay the Plaintiff anything for his injuries under section 20.
In reaching this conclusion the Court gave the following summary of the definition of “Highway” for the purpose of Uninsured Motorist Claims:

[3] In order for ICBC to be liable to pay a claim under the provisions of the s. 20 of the IMV Act, the claim must arise out of the use or operation of a motor vehicle on a highway in British Columbia. This follows from the definition of “claimant” and “uninsured motorist” in s. 20 of the IMV Act. “Highway” is defined in the IMV Act as meaning a highway as defined in the Motor Vehicle Act, R.S.B.C. 1996. c. 318 (“MVA”). The MVA definition of highway is:

“highway” includes

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an industrial road;

[4] The MVA also defines “industrial road” as follows:

“industrial road” means industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8 (1) of the Petroleum and Natural Gas Act;

[5] The definition of an industrial road in the Industrial Roads Act, R.S.B.C. 1996, c. 189 is not applicable in this case but the Forest Act, R.S.B.C. 1996, c. 157 definition of forest service road which is part of the definition of an industrial road in the MVA is in issue. The Forest Act defines a “forest service road” as follows:

“forest service road” means a road on Crown land that

(a) is declared a forest service road under section 115 (5),

(b) is constructed or maintained by the minister under section 121,

(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or

(d) meets prescribed requirements;

[6] The motor vehicle accident in this case occurred on a road known and marked as the Finlay Forest Service Road. The applicant ICBC argues that the Finlay Forest Service Road falls within the Forest Act definition because it is declared to be a forest service road and because it was constructed or maintained by the Minister of Forests. The respondent plaintiff argues that the Finlay Forest Service Road is a highway by way of public expenditure to which s. 42 of the Transportation Act, S.B.C. 2004, c. 44 applies and also because it is used by the general public for the passage of vehicles. Alternatively the plaintiff argues that if the Finlay Forest Service Road is a forest service road it does not satisfy the definition under the IMV Act because it is a Community Use Forest Service Road rather than an Industrial Use Forest Service Road, it is not primarily for the transportation of natural resources or machinery materials or personal and it is not maintained by the Ministry of Forests and Range.

[7] Another statutory provision of interest although not directly helpful in characterizing the Finlay Forest Service Road is s. 56 of the Transportation Act which enables the Lieutenant Governor and Council, with the consent of the Minister of Transportation and Highways and Minister of Forests and Range to order that a forest service road cease to be a forest service road and become an arterial highway or a rural highway. There is no evidence that this has occurred in this case.

BC Court of Appeal: No Litigation Privilege During Investigative Stage

Written by admin on June 10, 2010. Posted in Civil Procedure, Uncategorized.

As I’ve previously written, litigation privilege is a principle which allows parties in a law suit to keep evidence from the other side. In order to successfully take advantage of litigation privilege the document not only has to have been created in the reasonable contemplation of a lawsuit but also for the ‘dominant purpose‘ of use in such a lawsuit.
If a document was made for multiple reasons (ie – investigating a potential claim and defending against a potential claim) the law will likely require disclosure. Today the BC Court of Appeal released useful reasons summarizing this area of law.
In today’s case (Mathew v. Delta School District #37) the Plaintiff ‘slipped and fell on some ice at a school’. Shortly after the incident the school’s principal, a teaching assistant and a custodian made notes documenting what occurred. The Plaintiff started a lawsuit and asked for these. The Defendant refused to produce these claiming they were privileged. The dispute made it all the way to the BC Court of Appeal who found that the documents were not privileged as they were made during the ‘investigatory stage‘. The BC High Court provided the following very useful reasons:

[11] The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board, [1980] A.C. 521 at 541, attributing it to what Lord Denning had said in that case:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

[12] The investigatory stage was discussed in Hamalainen as follows:

[26] Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[13] It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.

The Problem With Losing An ICBC Injury Claim at Trial

Written by admin on June 10, 2010. Posted in BC Supreme Court Costs Cases, Uncategorized. 60 Comments on The Problem With Losing An ICBC Injury Claim at Trial

When Plaintiffs have their injury claim dismissed in the BC Supreme Court, not only do they get nothing to compensate them for their injuries, they actually end up having to pay the Defendant money. How can this be? The reason is something called “costs“. Generally speaking, the loser has to pay the winner’s Court costs and disbursements.
So how much money are we talking about here? The answer is thousands, sometimes tens of thousands, sometimes even over one hundred thousand dollars. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In this week’s case (Pearlman v. Atlantic Trading Company Ltd.) the Plaintiff was involved in a motor vehicle collision in 2004. He sued the party he claimed was responsible for his injuries. He also sued ICBC alleging that ICBC “had requested a medical report from his family doctor whose authorization to provide the report had been revoked by the Plaintiff.”.
A jury dismissed the Plaintiff’s first claim and a Judge dismissed the Plaintiff’s second claim. ICBC was awarded their Court costs. The BC Supreme Court assessed these at $66,000 for the two claims combined. The Plaintiff then appealed these costs awards. Madam Justice Gropper dismissed the Plaintiff’s appeals and upheld the awards.
While this case does not contain any unique or novel principles of law, it is worth reviewing because it demonstrates the stark realty that people can pay a very high price if they are on the losing end of an ICBC claim in the BC Supreme Court.
If you are interested in more information on costs consequences in BC Supreme Court injury lawsuits you can click here to read my archived posts on this topic.

There is Nothing "Mild" about Mild Traumatic Brain Injury

Written by admin on June 9, 2010. Posted in ICBC Brain Injury Cases, Uncategorized. 2 Comments on There is Nothing "Mild" about Mild Traumatic Brain Injury

Traumatic Brain Injuries (TBI) are generally categorized as Mild, Moderate and Severe. Despite what the name suggests, there is nothing necessarily “mild” about the effects of a mild traumatic brain injury (MTBI). Reasons for judgement were released today by the BC Supreme Court, New Westminster registry, doing a great job explaining this.
In today’s case (Cikojevic v. Timm) the Plaintiff was injured in a 2002 crash. She was 17 at the time. She was a passenger in a truck that drove off the road and hit a tree. The force of the collision “threw her head into the windshield hard enough to star it“.
All of the medical experts that examined the Plaintiff (both her own and those hired by ICBC) agreed she suffered a mild traumatic brain injury in this crash. The consequences of this never fully resolved and the Court accepted she would struggle with life long difficulties. Mr. Justice Brown awarded the Plaintiff over $1.4 million in total compensation including $1 million for her diminished earning capacity over her lifetime. The case is worth reviewing in full for the Court’s discussion of this head of damage. Prior to awarding damages Mr. Justice Brown provided the following useful quote about “mild” TBI:

[251] Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

[252] “Mild” describes the severity of the organic injury, not its effect.

[253] Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

[254] Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

[255] The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

Gross vs. Net Special Damages At Trial in ICBC Claims

Written by admin on June 9, 2010. Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 57 Comments on Gross vs. Net Special Damages At Trial in ICBC Claims

Special Damages are out of pocket expenses a Plaintiff incurs as a result of the fault of another. In an ICBC claim some of the typical special damages are costs for therapies and medication.
When a tort claim goes to trial a Plaintiff is entitled to recover their special damages from the at fault party. There is a very important exception to this in ICBC Claims, and that is if the Plaintiff’s special damages are covered by his own ‘no-fault’ insurance from ICBC an at fault defendant is entitled to reduce the amount of special damages by the amount the Plaintiff claimed or could have claimed under their own policy of insurance. (You can click here to read a previous post of mine for more background on this topic)
At trial, then, should a Plaintiff advance a claim only for expenses that have not already been covered by ICBC or should they advance a claim for all of their out of pocket expenses? Reasons for judgement were released today by the BC Court of Appeal addressing this.
In today’s case (Gasior v. Bayes) the Plaintiff was injured when his bicycle was struck by a vehicle. At trial a Jury awarded the Plaintiff $488,500. The trial judge then reduced portions of this award to account for ‘no-fault’ benefits the Plaintiff would be entitled to.
ICBC, on behalf of the defendant, appealed arguing that the trial judge was incorrect in some of her deductions. The Defendant claimed that a Plaintiff has to advance all of their special damages at trial (including money already reimbursed by ICBC) so that a proper deduction can be made after the special damages are assessed. The Court of Appeal disagreed and provided the following useful practice tip:
[17] The defendants argued that under the provisions of s. 25 of the Act, it was only appropriate for a plaintiff to advance a claim for all special damages (gross basis), allow the trier of fact to pass on this figure and make an award, and thereafter permit the defendant to deduct from such award all no-fault benefits previously advanced. This methodology has some attraction on the basis of simplicity (and avoidance of the sort of confusion that seems to have bedevilled this case). However, as pointed out by counsel for the plaintiff, when trying to conform to such methodology in a case before a jury, it becomes very difficult to avoid references to insurance and the insurer. As well, it may be difficult for a plaintiff to become aware of all expenditures paid on a no-fault basis by the insurer. If these hurdles could be satisfactorily overcome, the methodology argued for by the defendants may be preferable, but I consider that advancement of a special damages claim on a net basis can be an acceptable approach, especially in a jury trial. That methodology which will most effectively avoid the possibility of any infringement of the rule against double recovery is to be favoured and I would leave it to the good sense of counsel and trial judges to seek to achieve such result in any given case. Clear communications between respective counsel and the trial judge are essential for the achievement of such result. I would note there was some deficiency in clarity of communication in this case.

Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

Written by admin on June 9, 2010. Posted in Civil Procedure, independent medical exams, Uncategorized. 52 Comments on Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

(Update: November 14, 2011 – The case discussed in the below post in now publicly available. Master Scarth’s reasons for judgement can be accessed here)
Further to my previous posts about Independent Medical Exams in BC Supreme Court Injury Claims unpublished reasons for judgement recently came to my attention (Hou v. Kirmani BCSC Vancouver Registry, 20091119) dealing with the ability for a Defendant to have an injured party undergo multiple exams where the first defence expert feels an opinion from a second expert would be of benefit.
In this recent case the Plaintiff was a pedestrian who was apparently struck by a vehicle. She suffered “multiple injuries including traumatic brain injury“. One of her most serious injuries was a foot and ankle injury. She consented to attend a Defence Medical Exam with an orthopaedic surgeon. He provided the following opinion:
(the Plaintiff) would benefit from an opinion from a foot and ankle orthopaedic surgeon, as further surgical intervetnion may be of benefit to her and this might include surgical correction of her deformity so as to allow her to bear weight and walk short distances more appropriately. …I do not feel further passive treatment for her left foot and ankle will be of any benefit to her..
The Defendant brought a motion to compel the Plaintiff to be examined by a second orthopeadic surgeon, this time one with a specialty in foot an ankle injuries. The Plaintiff opposed arguing a further exam was not necessary. Master Scarth agreed and dismissed the motion. In doing so the Court made the following comments about the purpose and limitations of Defence Medical Exams:
…I am not of the view that Rule 30 is intended to allow follow-up on every issue which is raised by experts who examine the plaintiff.
Dr. Arthur was chosen, and I accept the submissions of the plainitff in this regard, with the knowledge that there were concerns regarding this plaintiff’s ankle. Thee is, it is fair to say, nothing new since Dr. Arthur was retained, apart from his reticence to provide an opinion. And he does not say, I do not believe, that he is not qualified to give the opinion which is missing, if it is missing. He simply says, I think it is fair to conclude, that in the best of all worlds she would be seen by an orthopaedic surgeon with a subspeciality training. In my view that is not the purpose of Rule 30.
As mentioned above, this is an unreported judgement but if anyone wants a copy feel free to contact me and I’ll be happy to e-mail a copy of the transcript.

Cyclist Injured In Collision With Cement Truck Loses at BC Court of Appeal

Written by admin on June 5, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized.

Earlier this month the BC High Court dismissed an appeal by a cyclist who sustained serious injuries when he collided with a cement truck in 2004 (Sivasubramanian v. Franz).
The cyclist was travelling on the right hand shoulder of a roadway. As he approached an intersection there was a cement truck ahead of him signalling to turn right. The truck then started its turn and the cyclist collided into the midsection of the truck. The Plaintiff sued the cement truck driver. The case was dismissed at trial (you can click here to read my summary of the trial Judge’s findings).
The Plaintiff appealed arguing that the trial judge was wrong to dismiss the claim because the motorist should have seen the cyclist before the collision and should not have turned when he did. The BC Court of Appeal disagreed and dismissed the case. In dong so the Court made the following comments:

[24] In the case at bar, the respondent truck driver was in the midst of a lawful turn to the right from the curb lane when the appellant rode his bicycle heedlessly into the mid-section of the truck. I agree with the trial judge’s conclusion that it would be unreasonable for Mr. Franz to assume that the appellant, or indeed any other user of the highway, would ignore his indication to turn right, and that by the time the appellant reached the intersection, Mr. Franz was well into his turn and could not have avoided the collision.

[25] The appellant’s submission that he was so close to the intersection as to constitute an immediate hazard to which Mr. Franz had sufficient time to react and take evasive action is not supported by the trial judge’s findings of fact.

[26] Second, the appellant’s argument that the trial judge erred in finding that even if Mr. Franz had seen the appellant he would have been justified in making the right hand turn is supportable. Given the trial judge’s findings I see no error in her conclusion.

[27] I would not accede to the appellant’s arguments. Notwithstanding Mr. Thomas’ able submissions, cases such as this are fact-driven. As in Trac v. Sangra (1995), 17 B.C.L.R. (3d) 92, “this is a case that could be won, if at all, only at trial. For us to interfere would require us in effect to retry this case and to take a different view of the facts from that of the trial judge. That we are most reluctant to do.”

[28] In my opinion, the appeal should be dismissed with costs to the respondents.

This case demonstrates one of the most basic principles in personal injury lawsuits (tort claims); in order to successfully sue for personal injuries the other party must be at least partially at fault otherwise the result will be dismissal at trial.

How Can the Same Injury Have Different Values in an ICBC Claim?

Written by admin on June 2, 2010. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

As I’ve previously written, the exact same injuries can be valued differently by a Court when ICBC Claims go to trial. When a judge or jury awards money for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the award isn’t made by following a chart or a mathematical calculation, instead the award is made by ‘assessing‘ damages.
An assessment is just as flexible as it sounds. There is no right award for pain and suffering. While past cases (what lawyers call precedents) are instructive, they only serve to provide a ‘range‘ of acceptable awards. So long as a trial award falls within the acceptable range of damages it will not be interefered with if challenged on appeal.
In practice this means that two people with similar injuries can be awarded different amounts for their claims and both outcomes can be correct in law. Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, discussing the ranges of damages in BC personal injury lawsuits.
In today’s case (Anderson v. Cejka) the Plaintiff was involved in a 2006 rear-end crash in Parksville, BC. Fault for the crash was admitted. The Court was asked to value the Plaintiff’s claim for pain and suffering.
Mr. Justice Halfyard found that the Plaintiff suffered from a Grade 2 Whiplash Disorder which took a long time to recover. The Plaintiff sought an award between $40,000 – $50,000, ICBC submitted that an award of $15,000 – $25,000 was more appropriate. The Court went on to award the Plaintiff $20,000 for his non-pecuniary damages and in doing so the Mr. Justice Halfyard made the following comments about ranges of damages:

[84] In my opinion, previously-decided cases, even where there are some similarities with the case at bar, can only assist in establishing a general range of damages which may apply to a particular case. This is because no two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. Moreover, the injuries (or combination of injuries) sustained by one plaintiff will never be the same as those incurred by another, in kind or severity. Additionally, the reaction of any two persons to the pain of a similar injury or to particular treatments will rarely if ever be the same. Other differentiating features may be the apparent length of the recovery period and, if the plaintiff has not recovered, the kind and extent of residual effects remaining from the injury at the time of trial, and whether any of the effects will be permanent.

[85] I have reviewed the cases cited by counsel, in light of the facts which I have found. Due to significant differences, I see no useful purpose in discussing them. There is no legal formula which can be used to measure the amount of pain and suffering and loss of enjoyment of life that a plaintiff has experienced as a result of an injury caused by the defendant. In my opinion, the range of damages for non-pecuniary loss in this case is the range suggested by Mr. Dreyer, namely, $15,000 to $25,000.

[86] The pain suffered by the plaintiff was never serious. He himself consistently described its severity as being one or two on a scale of ten. Within a few months after the accident, the symptoms became intermittent. Eventually, they became few and far between. The plaintiff was never disabled by the pain, to any significant extent. I must be careful not to penalize the plaintiff for being stoical in the face of pain. But I do not find that this is the case here. I award $20,000 for this head of damages.

When trying to determine how much your personal injury claim is worth the best thing you can do is read as many cases as you can dealing with similar injuries so you can determine a realistic range for your injuries.