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BC Personal Injury Claims and Sick Leave Benefits

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Uncategorized. 127 Comments on BC Personal Injury Claims and Sick Leave Benefits

Imagine that you are injured through the fault of another in British Columbia.  As a result of your injuries you become disabled and are unable to return to work for a period of time.  Fortunately you have a good job and have built up a ‘sick bank’ at work and you are able to draw from this during your period of disability.  When you bring your claim against the person responsible for injuring you are you able to claim your lost wages?  Reasons for judgement were released yesterday by the BC Supreme Court addressing this issue.
In this case the Plaintiff was injured in 2005 in a motor vehicle collision.  The Plaintiff was unable to work for a few weeks as a result of injury.  The Plaintiff had built up a sick bank and drew from this.  In her ICBC claim she claimed compensation in an amount equivalent to the hours depleted from her sick bank.  In awarding the Plaintiff this money the court engaged in a very thorough and well reasoned discussion of the law addressing this topic which I am pleased to reproduce below:

[56]            This court has long recognized the loss of sick bank credits as a compensable loss (see generally: McCready v. Munroe (1965), 55 D.L.R. (2d) 338, 54 W.W.R. 65 (B.C.S.C.)).  InLavigne v. Doucet (1976), 14 N.B.R (2d) 700 at para. 12 (C.A.), the New Brunswick Court of Appeal held that the depletion of a plaintiff’s accumulated sick leave arising from injuries suffered in an accident removed a benefit that he or she would otherwise have and, therefore, constitutes a genuine loss.  That conceptual approach was approved of by McLachlin J. (now the Chief Justice) in Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 972, 69 D.L.R. (4th) 25:

I accept that if an employee can establish that he or she has suffered a loss in exchange for obtaining wages during the time he or she could not work, the employee should be compensated for that loss. Thus in Lavigne v. Doucet the New Brunswick Court of Appeal quite rightly allowed damages for loss of accumulated sick benefits.

[57]            Some years later the issue was revived before the Supreme Court of Canada in Cunningham v. Wheeler, [1994] 1 S.C.R. 359, 113 DLR (4th) 1, where Cory J. confirmed at 13 that an employee who uses sick leave in order to receive wages while off work and loses those sick day credits is entitled to receive compensation.

[58]            In Roberts v. Earthy, 1995 CanLII 1421 (B.C.S.C.) [Roberts], Clancy J. held at para. 8 that it was not necessary to adduce evidence showing that any consideration was paid by the plaintiff or negotiated on the plaintiff’s behalf through a collective agreement or other employment arrangement.  He did so on the basis that the accumulation of sick days is not related to what has come to be known as the insurance exception to the compensatory principle where such supporting evidence is generally required.

[59]            The case authorities do not appear to support a universal approach to the quantification of the loss flowing from the depletion of sick leave benefits.  For example, in Collins v. Ma, 1990 CanLII 1634 (B.C.S.C.), the court endorsed a contingency calculation being applied in order to take into consideration the likelihood of an employee drawing on the lost banked sick days in the future.  That approach was followed by the court in Olson v. Nixon, [1991] B.C.J. No. 155, 1991 CarswellBC 1346 (S.C.).

[60]            In Roberts, however, Clancy J. made no deduction for contingencies.  Likewise, more recently in Choromanski v. Malaspina University College, 2002 BCSC 771, the court rejected the defence argument that there should be a  reduction of the loss taken based on the plaintiff’s work history and the rate at which he had traditionally availed himself of his sick benefits. 

[61]            In my view, whether it is appropriate to make deductions for contingencies in quantifying the loss will depend upon the presence or absence of certain factors.  Those would include, for example, whether there is a maximum limit of accumulated sick leave, whether the plaintiff is able to cash out accumulated sick leave days on termination or retirement, whether the plaintiff has several years of employment remaining in which to potentially use the sick leave or has only a few months of employment left until retirement with a significant sick leave remaining, or whether the plaintiff has left the employment in which he earned the sick day credits altogether.  It cannot be predicted with any degree of certainty whether a person who is healthy today will be so tomorrow.  Illness or injury can afflict any one of us at any time.  Placing much if any reliance on the plaintiff’s past use of sick benefits strikes me as an unsound and potentially unfair approach because it fails to adequately protect a plaintiff against an unexpected serious or catastrophic illness in the future which could occur in any otherwise healthy plaintiff, or against a future injury, which, by its nature, is unpredictable.  In neither case would those future events necessarily be related to the plaintiff’s past use of sick benefits.

[62]            I accept that had Ms. Fenwick not used her sick leave credits, she would have been entitled to transfer them from her then employer, the Vancouver School Board, to her new employer, the Coquitlam School Board.  As well I am satisfied that, pursuant to her collective agreement, any monies awarded to Ms. Fenwick on account of lost sick days is repayable to her then employer in order to replenish her sick leave bank.  Beyond that, the evidence pertaining to the details of the portability of Ms. Fenwick’s sick day credits was not well developed.  I do not have cogent evidence as to whether there is a maximum number of sick days allowable, the formula for which she has earned them or whether she is able to cash them out on retirement or termination.

[63]            As best I can decipher from the evidence, the loss that Ms. Fenwick has sustained is a potential future loss in the sense that it would only be experienced if she has insufficient sick leave credits to adequately cover a future period of absence due to illness in respect of which she could have drawn upon the lost sick bank for income continuation.

[64]            Ms. Fenwick thoroughly exhausted her accumulated sick leave as a result of the accident.  She is a relatively young woman in the early stages of her career as a teacher.  I have found that she likely will experience flare-ups of her symptoms caused by this accident from time to time in the future which may require her to miss brief intervals of time from work.  She may also suffer from other illness or medical conditions in the future which will keep her from work. 

[65]            I am satisfied that fair and reasonable damages for this loss is compensation which reflects the actual hours Ms. Fenwick missed from work and used as sick time, multiplied by her approximate average hourly rate, without deduction.  To that, I would add her wage loss stemming from fifteen hours of unpaid absences attributable to her injuries.  The total damages amount to $5,469.18.

[66]            Ms. Fenwick’s counsel raised a concern about whether damages for Ms. Fenwick’s lost sick bank entitlement could be validly characterized as pre-trial earnings or income and thereby attract a deduction for income tax pursuant to sections 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.  In my view, this kind of loss is not in the character of past wage loss.  Accordingly, there will be no deduction for income tax. 

ICBC Claims and Court 'Costs'

Written by admin on . Posted in Civil Procedure, Uncategorized.

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10)  A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?  Reasons for judgement were released today by the BC Supreme Court addressing exactly this question.
In today’s case the Plaintiff was awarded $20,000 in damages as a result of a 2005 BC motor vehicle collision.  In deciding that the Plaintiff is entitled to costs Mr. Justice Truscott summarized and applied the law with the following reasons for judgment:

[17]            The plaintiff Truong relies upon a decision of this court in Caldwell v. Maga [1997] B.C.J. No. 2166 (BCSC) where there were two plaintiffs, one being awarded $5,500 for damages and the other $4,500 for damages, both involved in a rear end accident.  This was at a time when the limit in small claims actions was $10,000.

[18]            Mr. Justice Drost referred to a previous decision of Mr. Justice Drake where he also dealt with two plaintiffs, who were each awarded under $10,000, and said in awarding them costs that the totality of the two judgments amounted to more than the small claims limit and they were entitled to costs.

[19]            Mr. Justice Drost determined to follow the reasoning of Mr. Justice Drake in that decision (Phosy & White v. Island Pacific Transport Ltd. [1996] B.C.J. No. 1037, (2 May 1996), Victoria Registry No. 95/1123).

[20]            I question the correctness of these two decisions as I tend to agree with defence counsel that taken to its logical conclusion that reasoning would mean that 26 claimants each with $1,000 claims would be entitled to sue in Supreme Court in one writ because the total would exceed $25,000, the present limit of small claims jurisdiction.

[21]            I consider it far more likely that the $25,000 limit of small claims jurisdiction should apply to each claim of each plaintiff no matter how many plaintiffs there might be.

[22]            However, I am obliged to follow the previous decisions of this Court which would probably entitle the two plaintiffs to sue in Supreme Court.

[23]            Apart from this, at the best of times I consider it difficult for any plaintiff’s counsel to estimate the appropriate range involved for personal injury claims of his clients at the initiation of the action.  The medical conditions of many plaintiffs continue to change following the initiation of the action as they continue to recover from their injuries or continue to suffer.

[24]            Here, even after Dr. Yong’s optimistic report of March 14, 2006, by January 26, 2008 he was still saying that it was likely that the plaintiff Truong would continue to suffer some degree of left shoulder pain probably for another one or two years.

[25]            The award to the plaintiff Truong of $20,000 is by itself less than the limit of jurisdiction in small claims of $25,000, but is not less by any large amount, and with the difficulty facing counsel of accurately estimating the range for a personal injury for his client at the initiation of litigation, knowing that if action is commenced in small claims his client will be limited to $25,000 no matter that the assessment might be in excess of $25,000, I am satisfied this plaintiff did have sufficient reason for bringing her claim in Supreme Court.

[26]            The plaintiff Truong will therefore have her costs of her claim at Scale B, only attributable to her claim.

$25,000 Awarded for Pain and Suffering in ICBC Low Back Injury Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $50,000 in total damages as a result of a motor vehicle collision, $25,000 of which represented non-pecuniary damages (money for pain and suffering).
The collision occurred in 2005.  The Plaintiff’s vehicle was rear-ended.  The court concluded that the force of the impact was mild.  
The court accepted that the Plaintiff suffered a mild muscular injury to his lower back in the motor vehicle accident.  The court also found, however, that the Plaintiff was partly to blame for his ongoing symptoms stating that:
[53]            The fact that Mr. Moojelski has been long-delayed in returning to a normal state of health results from a combination of inadequate or ineffective exercise and supervision, Mr. Moojelski’s refusal to take prescribed medications in prescribed dosages and his decision to exceed the recommended dosages by some substantial margin.  In that regard, Mr. Moojelski admitted that he reported to Dr. McPherson that when he had been prescribed Tylenol 3, he had used 6 tablets every 2 hours, greatly in excess of the prescribed quantity.  I find that it is likely that Mr. Moojelski’s mental health was adversely affected by his personal decision to rely on marijuana as a source of relief rather than adhering to his physician’s prescription of anti-depressants, and by not pursuing physical reconditioning of the kind Dr. le Nobel considers appropriate to a man of his pre-accident physical ability and age. 
The court found that the Plaintiff should fully recover from his injury.  In valuing the pain and suffering claim at $25,000 the court noted the Plaintiff’s role in his prolonged symptoms stating as follows:
[60]            In all of the circumstances, I am satisfied that an award of $25,000 as general damages adequately compensates Mr. Moojelski for the pain and suffering he has endured, and for the adverse effect upon his enjoyment of life and the loss of amenities.  In that assessment, I have taken into account the onset of a mild depression in March 2006, which was accident-related.  However, the depression was prolonged by Mr. Moojelski’s failure to adhere to the use of prescribed medications.  His refusal was unreasonable and is therefore reflected in the assessment of general damages.

Why a Speeding Vehicle is not Always at Fault for a Car Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 100 Comments on Why a Speeding Vehicle is not Always at Fault for a Car Crash

As a personal injury lawyer I often hear comments along the following lines during initial consulrations “The cops didn’t give me a ticket so I’m not at fault” or “the other guy was ticketed for speeding so he was totally at fault“.  
A common misconception is that if a driver is in violation of the motor vehicle act they are always at fault if involved in a motor vehicle collision.  This is not the case and reasons for judgement were released today by the BC Supreme Court illustrating this principle.
If a person is violating the motor vehicle act at the time of the collision that violation has to be a causative factor in a collision for the act to constitute negligence.  For example, a drunk driver who is clearly in violation of the motor vehicle act could have his/her vehicle rear-ended and be faultless for the collision despite being drunk.  
In today’s case the Plaintiff (a taxi driver) was travelling through an intersection in Vancouver, BC with the right of way.  He was travelling an estimated 85 kmph which was above the posted speed limit.  At the same time the Defendant, coming from the opposite direction, turned left in the path of the Plaintiff’s vehicle and a collision occurred.  
The Plaintiff argued that the defendant was fully at fault for failing to yield the right of way, the Defendant argued that the Plaintiff was at fault for speeding and had the Plaintiff been driving a lawful speed this collision would not have occurred.
Here the court found that the left hand turning vehicle was 100% at fault for this collision despite the Plaintiff’s speeding.  The key analysis takes place at paragraphs 35-45 of the reasons for judgement which I reproduce below:

[35]            Section 174 of the MVA provides:

174      When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[36]            In Raie v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.), Tysoe J.A. stated at 410 that:

[18]      …if an approaching car is so close to the intersection when a driver attempts to make a left turn that a collision threatens unless there be some violent or sudden avoiding action on the part of the driver of the approaching car, the approaching car is an “immediate hazard” within the meaning of sec. 164 [now s. 174].

[37]            Mr. Naeem was entitled to assume that all other drivers would observe the rules of the road.  He was not required by law to slow down as he approached the intersection.  The existence of the eastbound left turn lane did not cast a duty on Mr. Naeem to take extra care: Pacheco at para. 15.

[38]            Mr. Garrett never saw the taxi before the collision so that those cases where a left-turning driver wrongly estimates the speed of the approaching vehicle are not of assistance.

[39]            Mr. Garrett, if he exercised reasonable care, should have been able to see the taxi coming east past Fremlin Street more than a block away.  While he suggests that perhaps a traffic sign partially blocked his view, I find, based on the videotape, that was not the case.  If I am wrong and the traffic sign partially blocked his view, he should have taken more reasonable care before he encroached into the westbound lane.

[40]            Mr. Garrett would have seen the taxi if he had been looking.  He saw the two westbound vehicles turn right onto the Oak Street on-ramp.  He saw the right turn signal of one of those vehicles.  He may have been so focussed on the right-turning vehicles that he did not see Mr. Naeem, but that does not absolve him from liability.  The law required him to yield the right of way to the westbound vehicles.

[41]            If Mr. Garrett seeks to cast any blame onto Mr. Naeem for the collision, he must establish that after Mr. Naeem became aware, or by the exercise of reasonable care should have become aware, of Mr. Garrett’s disregard of the law, he had sufficient opportunity to avoid the accident:  Walker v. Brownlee at 461.

[42]            Travelling over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measure to avoid the collision.  However, the experts agree that the moment that Mr. Garrett encroached onto the westbound lane, it was impossible for Mr. Naeem to avoid the collision.

[43]            The next issue is whether the collision could have been avoided if Mr. Naeem drove at a lower speed or at the speed limit.  The speed of a vehicle and the location of the vehicle are related.  It is impossible for Mr. Naeem to have been travelling at about 85 kilometres per hour along Marine Drive and then instantly change to the posted speed limit 40 metres from where the collision occurred.  As Mr. Naeem argues, if he had kept to 30 kilometres per hour from the outset, he would have been back in Burnaby when Mr. Garrett ploughed across oncoming traffic that morning.  If he sped along at 120 kilometres per hour he would have cleared the area well before Mr. Garrett made his left-hand turn.

[44]            While it seems attractive to attribute blame based on the speed of the dominant driver and hypothesize on what would have happened if Mr. Naeem kept to the speed limit, the fact is that Mr. Naeem drove at the speed he did and there was nothing he could have done, driving at the speed he did, to avoid the collision.  When Mr. Garrett decided to proceed with his left-hand turn, Mr. Naeem was approximately 40 metres away.  He was an immediate hazard and Mr. Garrett should have yielded to him.

[45]            I find Mr. Garrett fully at fault for the accident.

[46]            I note that counsel for the plaintiffs made no argument as to the costs.  If the parties have not otherwise agreed, I find Mr. Garrett liable for the costs of the two actions.

How a Telephone Pole can be Responsible for a Car Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, Tort Reform, Uncategorized. 115 Comments on How a Telephone Pole can be Responsible for a Car Crash

One thing that I find irritating as a personal injury lawyer is when cases with merit are mis-reported by the media and spun as ‘frivolous lawsuits’.
Yes there are frivolous lawsuits out there.  Yes some of the facts behind such cases are, to say the least, embarrassing for the profession.  But there are many cases with merit that at quick glance can appear frivolous but with deeper digging simply are not so.
Reasons for judgement in such a case were released today by the BC Court of Appeal.  In this case the Plaintiff suffered serious injuries when struck by a motor vehicle while crossing a marked cross-walk.  The trial court found that the District of Campbell River and the Telus Corporation were each 20% at fault for this crash for the negligent placement of a utility pole.  How can a utility pole be at fault for a crash between a motorist and a pedestrian?  I could see this getting spun the wrong way so I thought I would take the first crack at reporting this case.
The facts of the case are well summarized in paragraphs 6-7 of the reasons for judgment.  I reproduce these below:

[6]                Around 9:00 p.m. on 3 January 2003, in Campbell River, Robert Simpson was walking home from his job as a pharmacist.  It was dark and raining.  Mr. Simpson, who was wearing dark clothing and carrying an umbrella, stepped into a marked crosswalk from the south side of a wooden utility pole and was struck by a southbound pick-up truck driven by Mr. Baechler.

[7]                Mr. Simpson’s injuries were serious: they included a fracture of both knees that required surgery and will require future surgical attention, a fractured pelvis, an abrasion to the forehead, and a moderate closed head injury that has impaired Mr. Simpson’s functional capacity

A Claim was made against the driver of the vehicle, the City and the telephone Company (who were co-owners of the pole).  The Claim against the City and the utility company were that they placed the pole in a hazardous place in relationship to the road and the pedestrian crossing.  Frivolous?  Consider these facts that the Court of Appeal reviewed in upholding the trial judge’s finding that the City and the telephone company were partially to blame for this crash:

[12]            The utility pole was embedded in the sidewalk on the northwest corner of the intersection.  Its near edge was about 14.6 inches from the curb.  Telus Corporation, part owner of the utility pole, had installed a plastic pilaster on the westerly aspect of the pole, to protect some cables.  With the pilaster, the pole was about 18.9 inches wide at eye level and 23.6 inches wide at its base. (BC Hydro was co-owner of the utility pole.  Mr. Simpson’s action against BC Hydro settled and was dismissed by consent).

[13]            The pole had not always been embedded in the sidewalk.  It was originally west of the sidewalk, but in the process of widening Dogwood Street in the 1980s the pole’s base was incorporated into the sidewalk.

[14]            In 1996, Campbell River, the RCMP and the Insurance Corporation of British Columbia identified Dogwood Street between 11th and 13th Avenues as accident prone and problematic with respect to traffic operations.  An engineering firm studied the corridor, found that the pole obscured pedestrians from the view of southbound drivers, and recommended (among other things) the relocation of the utility pole.

[15]            In 1997, Campbell River authorized relocation of the pole.  BC Hydro agreed. Telus Corporation was opposed, apparently because its cables were an impediment. All of the other recommended improvements to the intersection were made, but the pole remained where it had been.

[16]            The location of the utility pole was a continuing safety concern for Campbell River.  It was recognized as a safety hazard by the City’s engineering services manager.  In 2001, a second safety review of the Dogwood corridor found that the Dogwood Street and 12th Avenue intersection had a low accident frequency and severity history, but that rear-end collisions occurred in the southbound lanes with “relatively high” “pedestrian involvement”.  A new plan to modify the corridor was approved.

[17]            The trial judge held that the T intersection at 12th Avenue and Dogwood Street had “long been considered dangerous among Campbell River residents (para. 6).  He also found that Mr. Baechler was familiar with the intersection (para. 40) and with its “dangerous nature” (para. 23).

[18]             In 2003, after the accident involving Mr. Simpson and Mr. Baechler, the utility pole was relocated about 3 metres away and the other Telus equipment reinstalled.  The cost of about $3,000 was shared by Telus, BC Hydro, and Campbell River.  The obstruction to visibility was eliminated.

[19]            Embedded in the sidewalk as the utility pole remained at 9:00 p.m. on the night of 3 January 2003, when Mr. Baechler was driving home after dinner with some friends, and Mr. Simpson was walking home after work, the pole continued to obscure the view of pedestrians on its south side looking north for vehicles and the view of southbound drivers looking for pedestrians on the northwest corner of the intersection.

In upholding the liability of the City and the Telephone Company the court gave the following reasons:

[52]            There was ample evidence to support the finding that the pole was a contributing cause of the accident.  There was evidence that the pole presented a hazard known to both Telus and Campbell River that they had failed to remove.  The learned trial judge found that had the pole not obstructed his view, Mr. Simpson would have been able to see and would have seen Mr. Baechler’s vehicle approaching.  Telus and Campbell River have not established any error with respect to that factual finding.  Mr. Simpson’s failure to see oncoming traffic when he had the opportunity to do so does not render “irrelevant” the fact of his view’s being obstructed by the hazardous utility pole as he waited to cross the street.  I would not disturb the finding of the trial judge that the utility pole was a cause of the accident.

When frivolous lawsuits are reported the cases are worth taking a detailed look at.  In this case there was compelling pre accident evidence that the pole “obscured pedestrians from view of drivers” and that this created a hazard with “relatively high”  “pedestrian involvment” yet to save about $3,000 this known hazard was not moved!  

Don’t always believe the headlines that summarize lengthy legal proceedings in a sound bite.  Surly there are frivolous cases out there but decisions such as this one show that things are not always as they first appear.  This case also illustrates that the discovery powers given to litigants in the BC Supreme Court can go a long way in uncovering blameworthy conduct which is not so apparent at first glance.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on . Posted in Civil Procedure, Uncategorized.

One of the most frequently litigated issues in ICBC claims is the nature and number of ‘indpendent’ medical examiners (“IME”) that Defendants are entitled to have Plaintiffs examined by.
Reasons for judgement were released today by the BC Supreme Court ordering a Plaintiff to be examined by a psychiatrist of the Defendant’s choosing.  In this case the Defendant’s need for a psychiatric IME of the Plaintiff was not seriously challenged, what was challenged was the timing.
Rule 40-A of the Supreme Court Rules deals with the admissibility of expert opinion evidence in Supreme Court trials.   Rule 40A(5) requires such expert evidence to be exchanged with the other party 60 days before it is tendered in evidence.
In today’s case the requested examination would take place less than 60 days from trial.  The Plaintiff argued that if the medical exam went ahead he would be prejudiced because the Plaintiff would have insufficient time to hire his own expert to respond to the opinion that was being sought.  This, the Plaintiff argued, would likely lead to an adjournment which would be prejudicial to the Plaintiff.
Master Tokarek of the BC Supreme Court ordered that the medical exam proceed despite the Plaintiff’s objection.  In doing so he stated that “the timing of the application, without more, is largely irrelevant”.  The key reasons are set out in paragraphs 23-27 which I set out below:

[23]            The comment about the balancing of prejudice is of some significance in the context of submissions made in the case at bar with respect to when defence counsel could or would be able to seek an IME.  Plaintiff’s counsel submitted that whenever the plaintiff would be unable to obtain expert evidence to rebut or deal with any defence IME report, an order should not be made.  Counsel indicated that his dilemma would be the same even if this application was brought in December because he would need approximately one year to get an appointment with his own expert.  The logic of that seems to be that unless defence counsel applied for the psychiatric IME a year or more in advance of the trial date, the application should be denied because plaintiff’s counsel would be in exactly the same position of not being able to get his expert to deal with it and prejudiced because of an adjournment.  I utterly reject that logic

[24]            I believe the more appropriate approach is to balance the prejudice of a potential adjournment against the prejudice to the defendant in not obtaining relevant evidence.  Here the requested IME is not with respect to an inconsequential or insignificant issue.  The defendant seeks to reasonably establish that the plaintiff’s complaints are wholly or largely unconnected to the MVA.

[25]            The balance of the authorities are similarly either distinguishable or unhelpful.  Master Barber, in the Bubra decision said:

. . . the defendant has had full opportunity to have this matter brought forward at an earlier date so that these matters could be dealt with in a reasonable way.  For their own reasons, they have not done so. 

I do not find that to be the situation here.

[26]            The last authority, the Barron case, is another decision of Master Patterson.  At paragraph 21 he said:

. . . it seems to me that it is the obligation of the defence to not sit and wait until the last minute and then scramble to bring an application like this on.

With all due respect, the timing of the application without more, is largely irrelevant.  All of the authorities relied on by the plaintiff came to the conclusion, in some fashion unknown to me, certainly not discernable from the reasons, that the timing would lead to an adjournment and that an adjournment would prejudice the plaintiff.  Apart from the Mackichan decision, there is nothing to suggest that any consideration was given to balancing the prejudice to the plaintiff against that of the defendant.

[27]            In this case, I have no evidence to conclude that there would be an adjournment or that if that was so, it would amount to a prejudice that outweighs the prejudice to the defendant in not being able to obtain material evidence going to the heart of the plaintiff’s claim.  Consequently I grant the application and order that an IME take place as requested.

Personal Injury Claims, Settlement Agreements and Repudiation

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Personal Injury Claims, Settlement Agreements and Repudiation

When offers are made for the settlement of ICBC or other BC personal injury claims the parties involved must take care not to ‘demonstrate an unwillingness to be bound by the agreement’ otherwise they risk the settlement agreement being repudiated.  Reasons for judgement were released today illustrating this principle.
A bit of background is necessary before getting into the facts of this case.  Typically in BC Personal Injury Cases from car accidents ICBC insures both the Plaintiff and the Defendant.  This is so because ICBC is a statutory insurer with certain monopoly privileges so they insure almost all vehicles in British Columbia.  In some circumstances, of course, other insurance companies are involved (for example when the offending party is an out of Province motorist).
In today’s case the Plaintiff was insured with ICBC for ‘no-fault benefits’ (also known as Part 7 benefits) and the operator of the offending vehicle was insured with Progressive.  The Plaintiff ran into problems with both companies and started a lawsuit against ICBC for no-fault benefits which were allegedly outstanding and also made a tort claim against the motorist insured with Progressive.
The tort case apparently settled for “79,605.50 plus costs of no more than $19,767.13″.  The parties then apparently settled the costs amount with Defence Counsel writing to Plaintiff’s counsel stating
I have instructions to accept your offer to settle the costs.  The adjuster will be forwarding to your office a cheque in the sum of $97,936.70 Cdn to cover the settlement including costs.  The funds will be sent on your undertaking not to release any part of them to the plaintiff until the Release and Consent Dismissal Order that I plan to fax to you today are fully executed, and on your further undertaking to return the executed documents to me as soon as reasonably possible
A few days later counsel for the Plaintiff responded stating that the Plaintiff “was not prepared to execute the release because it referred to a “Part VII action”.  It stated that the defendant was released from all claims:”
The parties tried to resolve their differences but could not.   The Plaintiff brought an application for an order to enforce the settlement agreement that was allegedly reached.  Mr. Justice Williamson refused to do so finding that the Plaintiff had repudiated any settlement agreement that may have been reached.  The courts key reasoning is set out at paragraphs 14 – 20 of the judgement which I reproduce below:

[14]            The plaintiff relies upon Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Ct. J. (Gen. Div.)). At para. 24 of that decision, Chapnik J. stated:

It is well established that settlement implies a promise to furnish a release unless there is agreement to the contrary.  On the other hand, no party is bound to execute a complex or unusual form of release: although implicit in the settlement, the terms of the release must reflect the agreement reached by the parties.  This principle accords with commons sense and normal business practice.

[15]            And further, at para. 36, the learned judge stated:

The onus is on the party claiming repudiation to show that the disagreement consequent upon the settlement constitutes a repudiation of it.  Subsequent disputes should be resolved by application to the court or by common sense within the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevail amongst members of the bar.  It will be rare for conduct subsequent to a settlement agreement to amount to repudiation.

[16]            In so stating, Chapnik J. referred to a decision of McEachern C.J.B.C. in Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114, 37 B.C.L.R. (2d) 62 (C.A.).  In Fieguth, the Chief Justice noted that once there has been an agreement, one party can tender whatever documents thought appropriate to complete the agreement without actually rescinding the settlement.  At page 121, the Chief Justice stated:

If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed.  If the documents are not accepted then there must be further discussion but neither is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

[17]            Here, the release documents were not accepted.  There was further discussion.  The question is, in the words of McEachern C.J.B.C. as stated above, has one party demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied?

[18]            I conclude that is the circumstance here.  The parties appear to have agreed to settle the matter for $97,936.70 Cdn.  However, when the necessary documents, in particular the release, was forwarded to counsel for the plaintiff, the plaintiff declined to execute the release unless something was done about the plaintiff’s right to continue with the other action against ICBC. 

[19]            I have referred to the December 1, 2008, email from counsel for the plaintiff to counsel for the defendant.  In my view, the wording of it is clear.  It states “my client will sign a full release once she has been compensated for Part 7’s in the sum of $7,000”.  In other words, the plaintiff took the position that she would not complete the November 19 agreement unless she was paid an additional $7,000 or, presumably, the defendant agreed that she could continue her action against ICBC.  I conclude that to take such a position is to repudiate the agreement allegedly reached on November 19. 

[20]            In the circumstances, the plaintiff’s application is dismissed.  The defendant will have its costs.

Constitutional Challenge to Nova Scotia Minor Injury Caps Dismissed

Written by admin on . Posted in Tort Reform, Uncategorized. 48 Comments on Constitutional Challenge to Nova Scotia Minor Injury Caps Dismissed

While this blog is largely restricted to BC Personal Injury and ICBC Claims as a Personal Injury lawyer I like to keep an eye across other Canadian jurisdictions for interesting developments with respect to personal injury law.
For all of the flaws, both real and perceived, of our system with ICBC as a monopoly auto insurer, the BC tort system is one of the best in Canada.   It is fortunate that victims of injuries caused through the negligence of others have the right to seek fair compensation through the courts in BC.
BC has some of the fewest legisltative impediments on victims rights when it comes to advancing negligence claims.  Other Provinces are not so lucky.  Many Provinces in Canada have implemented a ‘no-fault’ system where victims rights to claim money for pain and suffering are taken away to provide certain benefits to all whether they are responsible for their own injuries or otherwise (akin to our WCB system).  Other Provinces have enacted statutory ‘caps’ on damages for certain types of injuries.  Nova Scotia is one such Province where a $2,500 cap on ‘minor injury’ damages was imposed by statute.
Reasons for judgment were released by the Supreme Court of Nova Scotia today dismissing challenges to the constitutionality of a law which created statutory caps on non-pecuniary (pain and suffering) awards for minor injuries.
Specifically the relevant part s. 113B of the Nova Scotia Insurance Act provides that
Limitation on liability

113B (1) In this Section,

(a) “minor injury” means a personal injury that

    (i) does not result in a permanent serious disfigurement,             

    (ii) does not result in a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature, and

    (iii) resolves within twelve months following the accident;

     

(b) “serious impairment” means an impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment.
And the relevant section of the Automobile Insurance Tort Recover Regulations provide that:
2     (1)    For the purposes of Section 113B of the Insurance Act and these regulations,
   (d)    “personal injury” does not include
                         (i)     a coma resulting in a continuing serious impairment of an important bodily function,
                         (ii)    chronic pain that
                                  (A)   is diagnosed and established as chronic pain by a medical specialist appropriately trained in the diagnosis and management of pain disorders,
                                  (B)   is a direct result of a physical injury sustained in the motor vehicle accident with respect to which the claim is brought, 
                                  (C)   results in a continuous serious-impairment of an important bodily function, and
                                  (D)   is moderately severe or severe pain, as classified in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition,
                         (iii)   a burn resulting in serious disfigurement,
                         (iv)   an amputation of a major limb;
(f)    “resolves” means
                         (i)     does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment, or
                         (ii)    causes a serious impairment which results from a continuing injury of a physical nature to produce substantial interference with a person’s ability to perform their usual daily activities or their regular employment where the person has not sought and complied with all reasonable treatment recommendations of a medical practitioner trained and experienced in the assessment and treatment of the personal injury;
 (g)    “substantial interference” means, with respect to a person’s ability to perform their regular employment, that the person is unable to perform, after reasonable accommodation by the person or the person’s employer for the personal injury and reasonable efforts by the injured person to adjust to the accommodation, the essential elements of the activities required by the person’s pre-accident employment;
          (h)    “usual daily activities” means the essential elements of the activities that are necessary for the person’s provision of their own care and are important to people who are similarly situated considering, among other things, the injured person’s age.
The Plaintiff’s challenged that Nova Scotia’s Caps on Non-Pecuniary damages violate s. 15 and s. 7 of the Canadian Charter of Rights and Freedoms.  These sections guarantee life, liberty and security of the person and provide equality rights not to be discriminated against as a reslt of race, national or ethinic origin, colour, religion, sex, age or mental or physical disabililty.  The Plaintiff’s argued that s. 113B infringed s. 15 of the Charter based on physical disability and sex.
In very lengthy reasons for judgement (Part 1 of the reasons are all that have been released to date and these are 92 pages long) the Court dismissed the challenges.   I would reproduce the key reasons in this blog however the judgemenet was released in PDF form so I can’t cut and paste the key paragraphs.
This judgement and the underlying legislation are worht reveiwing for any students of the law keen on the topic of ‘tort reform’.

Botox Injections for Rehabilitation and ICBC No-Fault Benefits

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 48 Comments on Botox Injections for Rehabilitation and ICBC No-Fault Benefits

You are insured with ICBC and are injured in a BC Car Accident.  You experience chronic pain and your doctor tells you that you will likely benefit from Botox Injections to aid in your rehabilitation.  Botox treatment is expensive, so you apply to ICBC to have this covered under your No-Fault Benefits (sometimes referred to as Part 7 benefits).  ICBC tells you, “sorry, Botox treatment for injury is not covered under Part 7.” Are they right?  Wrong.
Reasons for judgment were released today by the BC Supreme Court ordering that ICBC cover the expenses associated with a Plaintiff receiving Botox treatment.
The Plaintiff was injured in a 2005 BC car crash.  The Plaintiff applied for and received previous funding for various treatments of injuries from ICBC.  The Plaintiff then saw a rehabilitation specialist who recommended Botox injections.  The cost of these was expected to be $3,500.  ICBC, without a contrary medical opinion as to the reasonableness of this treatment, failed to fund it and took the position that this expense did not have to be covered.
Section 88 (1) of the Insurance (Vehicle) Regulation deals with ICBC’s no-fault medical and rehabilitation benefits and requires that ICBC cover all reasonable expenses incurred by the insured as a result of the injury for necessary services, therapy or treatment as set out in the Regulation.
Justice Macaulay, in very well thought out reasons for judgment, ordered that ICBC had to pay for the Botox injections in the circumstances of this case.  The key reasoning in the judgment can be found at paragraphs 33 – 40 which I will publish as soon as the judgement is released on the BC Court’s website.
This case is also very interesting to me from a procedural point of view.  The Plaintiff brought this application by way of summary trial under Rule 18-A.  The Plaintiff relied on his affidavit and a medico-legal report.  ICBC did not have the opportunity to cross examine the Plaintiff or the treating doctor and typically litigants are entitled to do so.  ICBC took the position that this application should not be heard until they had the chance to cross-examine.
Mr. Justice Macaulay disagreed with ICBC and allowed the application to proceed.  He ruled that “There is nothing to be gained by directing cross examination of either the doctor or the Plaintiff.  The doctor makes it clear that she recommends this treatment as one of several options because the plaintiff’s lower back problems have been intractable.  It is primarily a legal issue whether that is sufficient to trigger an obligation on ICBC under s. 88(1).  There is also no reason to expect that the cross examination of the plaintiff will result in any alteration of the evidence…cross examination will not be ordered [in Rule 18A summary trials] absent some likelihood that the procedure will produce evidence in support of the other side…I am satisfied that the proposed cross-examination of the plaintiff and his doctor are speculative and not likely to produce evidence in support of ICBC.”

ICBC Claims, Settlement Offers and Timelines for Acceptance

Written by admin on . Posted in Civil Procedure, Uncategorized.

Interesting reasons for judgement were released today by the BC Court of Appeal setting aside a settlement of an ICBC injury claim.
In this case the Plaintiff was allegedly injured as a result of a 2001 BC motor vehicle collision.  In September, 2006 the parties attended a mediation and ICBC made an offer to settle the Plaintiff’s claim for $50,000 plus costs and disbursements.  The Plaintiff did not accept the offer at mediation and the mediation came to an end.  
The following month the Plaintiff’s lawyer attempted to accept the settlement offer.  The defendants refused to proceed with the settlement, stated that the offer was revoked and attempted to proceed to trial.
The Plaintiff brought an application to enforce the alleged settlement and appeared before the BC Supreme Court.  The presiding judge ordered that there was a binding settlement.  The Defendants appealed.  The Court of Appeal ordered that there was no settlement or if a settlement was reached it was ‘void for uncertainty and unenforceable‘.
The court’s key discussion is set out at paragraphs 15 – 21 which I set out below:

[15]            In my view, on the evidence presented in this rather unsatisfactory record, a settlement cannot be said to have been reached for two reasons.  First, the offer made in mediation was not accepted within a reasonable time.  Second, the terms of the purported settlement lacked certainty. 

[16]            What is a reasonable time is a question of fact.  However, it is a question to which the learned chambers judge never directed her attention in either of the two sets of reasons she gave.  In the absence of any express provision, a reasonable time for acceptance of the offer at mediation depended on all the circumstances.  The mediation concluded with no agreement.  The trial date was approaching.  Both sides were no doubt preparing for trial and incurring the attendant costs.  The reasonable observer would, if asked, have concluded that the time for acceptance of the offer, even if it continued after the mediation had ended, had gone by.

[17]            Nor can the terms of the purported settlement be said to be certain.  The offer at mediation was to pay $50,000 plus costs and disbursements.  The letter of 20 October 2006 purported to accept an offer of $50,000 “plus party and party costs in the tort action”.  The letter did not specify the date at which such costs were to be determined.  It did not specify the amount of the costs, nor the manner in which they were to be determined.  If the letter of 20 October 2006 can be said to have concluded an agreement, it was at best an agreement to agree. 

[18]            The learned chambers judge recognized this difficulty.  She said:

It is apparent that the parties have not agreed upon the matter of costs.

[19]            She then directed that the issue “be referred to the trial judge”.  There was no trial, and there was no trial judge.  Moreover, there was no order as to who should pay what costs, at what level, or for what period of time.  None of the factors which might guide a judge in making a ruling on costs were known or knowable.

[20]            Even if one were to read this direction as one for taxation of costs before the Registrar, there is nothing in the evidence to suggest that this was what either party intended, or the basis on which a Registrar could conduct a taxation.

[21]            If there was any kind of an agreement reached, it was void for uncertainty and unenforceable.  And in any event, the offer not having been accepted within a reasonable time, no agreement can be said to have been reached.

This case illustrates the fact that if an informal settlement offer is made (as opposed to a formal settlement offer under Rule 37B) it is important for the parties to have a meeting of the minds and know exactly what is being offered.  Does the offer include court costs?  Disbursements?  How long is the offer open for acceptance?  These and other questions are important factors when considering a settlement offer for an ICBC claim.