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Happy 2009! Some Great Resources to Get the Year Started

Written by admin on . Posted in Uncategorized.

Happy New Year everyone.  The web and the law are becoming evermore intertwined and this connection will only grow stonger in 2009.  On that note, here is a short off  topic post.
I had the privilege of reading CharonQC’s Blawg Review #193.  For those not familiar with the term, Blawg is the term that has been coined for Legal Blogs.  CharonQC is a law professor in London, England.  For students of the law and those generally interested with the subject his annual Blawg review is one of the best out there and is an excellent resource.  There are some great Blawgs mentioned and these are worth checking out for anyone looking to follow some of the most interesting lawyers on the web.
Also worth checking out is his Canadian Law Blogs pageflake.  This, along with Steve Matthews list of Canadian Law Blogs are some of the best resources of available Canadian on-line legal information.
One growing resource that has caught my attention in 2008 is JDSupra.  JDSupra has an ever expanding database of court filings, legal briefs and articles from lawyers throughout North America.  This resource will undoubtedly benefit many more in 2009.
Lastly, former Personal Injury Lawyer turned gugu legal marketer Kevin O’Keefe has recently launched Lextweet which is the definitive resource for people looking for lawyers on Twitter, a quality list that is growing by the day.
A sincere thanks to all who have visited this blog in 2008 and to the conuntless visitors who have provided me with so much positive feedback.  I wish everyone a great 2009 and look forward to another year of writing about ICBC Claims and other BC Personal Injury Cases of interest. 

Brain Injury Claim Dismissed, $55,000 Pain and Suffering for STI's and Hearing Loss

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

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.
The Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle.  The Plaintiff had a green light and a significant impact occurred.
The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off.  Liability (fault) was admitted on behalf of the defendants on the morning of trial.  The trial focused on the Plaintiff’s injuries and their value.
The most contentious claimed injury was a concussive injury affecting cognitive abilities.   The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges.  In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident.  But I am not persuaded that it is more probable than not that this occurred.”
Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 – 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.
In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89]            I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall.  I would describe the severity of these injuries as being moderate.

[90]            I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident.  Not all of this loss of hearing was caused by the injury.  Some of it was attributable to the normal aging process.  I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91]            I am not satisfied that the plaintiff sustained injury to her brain.  Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium. 

[92]            The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder.  Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future.  These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions.  To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop.  But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder.  The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation.  But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

ICBC Insurance Claims and Wilfully False Statements

Written by admin on . Posted in Uncategorized. 114 Comments on ICBC Insurance Claims and Wilfully False Statements

If you are insured with ICBC and are making a claim for benefits you have a duty to act in good faith in your communications with ICBC.   Similarly, ICBC has a duty to process your first party insurance claim in good faith.
What happens if you make a false statement to ICBC?  Can this cause a breach of your insurance?  The answer is yes, depending on whether the statement is willful and if it was material in processing the claim.
Reasons for judgement were released today by the BC Supreme Court addressing this issue.  The Plaintiff owned a 2000 Porshe Boxter which was allegedly stolen in 2005.  The Plaintiff purchased the vehicle in 2004 and paid $38,000.
After the vehicle went missing the Plaintiff reported the theft to ICBC and the police.  He told the police that the vehicle was worth $45,000.  When filling out a form titled ‘Report of Automobile” to ICBC the Plaintiff he filled out the box asking ‘amount paid’ with the sun of $44,000.
ICBC refused to pay the Plaintiff for the value of the vehicle.  The Plaintiff sued.   The claim was dismissed because the court found that the Plaintiff ‘inflated’ the value of the vehicle when reporting the loss to ICBC and doing so was ‘material to (ICBC’s) assessment of the claim), thus holding the Plaintiff in breach of section 19 of the Insurance (Motor Vehicle) Act Regulations.
The court summarized the law starting at paragraph 114.  I reproduce this below:

Forfeiture Pursuant to the Provisions of the Insurance (Motor Vehicle) Act Regulations, R.S.B.C. 1996, c. 231, S. 19(1)(e)

[114]        The section reads:

19(1)    If …

(e)        an insured makes a wilfully false statement with respect to a claim under a plan,

all claims by or in respect of the applicant of the insured are rendered invalid, and his or her right and the right of a person claiming through or on behalf of or as a dependant of the applicant or the insured to benefits and insurance money is forfeited.

[115]        The leading statement of law in this matter was enunciated by McEachern C.J.B.C. in Inland Kenworth Limited v. Commonwealth Insurance Company, (1990) 48 B.C.L.R. 2d 305 at pages 309 – 311, and cited by Rowles J.A. in Brown v. Insurance Corp. of British Columbia, 2004 BCCA 254 at paras. 10-11:

10.       In Inland Kenworth, in which s. 231(1) of the Insurance Act, R.S.B.C. 1979, c. 200 was under consideration, McEachern C.J.B.C. said, at 309-311 (B.C.L.R.):

I agree that a wilfully false statement which is not material may not usually be relied upon by the insurer. Materiality is, however, one of the fundamental principles of insurance law and it manifests itself in many ways. The classic test of materiality in insurance law is whether a statement is capable of affecting the mind of the insurer.

* * *

It is sufficient, in my view, if the fraud or wilfully false statement is capable of affecting the mind of the insurer either in the management of the claim or in deciding to pay it. It is unnecessary to speculate about what the insurer would have done if the fraud had not occurred but I point out that the insurer may have waived appraisal and decided to pay Blue Book value. On the other hand, the insurer may have done exactly what it did in this case, that is submit the question to appraisal.

A contract of insurance is one of utmost good faith and one cannot commit frauds or make wilfully false statements about the subject matter of the claim for any purpose without risking the loss of the right to indemnity if it turns out to be material on any issue.

* * *

I do not say that any wilfully false statement will be sufficient to vitiate coverage. It must be material. I think the wilfully false statement about the subject matter of the insurance, intended to comply with the warranty, but which also related to the question of value, and was capable of affecting the mind of the insurer, destroyed the integrity of the claim, and was material at least to the latter question. Under the Act, and at law, this forfeits the right of the insured to indemnity.

11.       In Peterson v. Bannon , supra, s. 18(1)(e), which is now s. 19(1)(e) of the Act, was under consideration,.  In that case, Finch J.A., as he then was, said at para. 59:

Inland Kenworth therefore affirmed that if an insured makes a wilfully false statement about the subject matter of his or her claim, that person risks forfeiture if the statement is material to any issue arising in the claim. Although the respondent argued otherwise, there is no real distinction between the language of s. 231(1) and s. 18(1)(e). I consider myself bound by Inland Kenworth, a judgment with which I respectfully agree. A wilfully false statement will invalidate an insured’s claim only if the statement is material to the claim at risk of forfeiture.

[Underlining added

[116]        Mr. Chahal correctly argues that there has to be a wilfully false statement and secondly that it was material to the processing of the claim.

[117]        As well, he relied on the decision of Cullen J. in DeCastro v. I.C.B.C., oral reasons given October 2, 2006, which had some similarities in a central issue arising from the effectiveness of the immobilizer in a BMW that had been apparently taken from outside a pub on March 31, 2004, and subsequently found without tires and wheels, various front-end components and destroyed by fire.

[118]        Cullen J. noted the initial burden falls on the plaintiff to show that loss falls within the coverage but that is not onerous and that secondly, the onus then shifts to the defendant to prove on a balance of probabilities intentional material conduct by the plaintiff that is in breach of one of the sub-sections of s. 19(1).

[119]        The principal arguments about representations made with respect to the claim are: (1) the statement made as to the price paid; (2) the number of keys provided by Mr. Leach.

[120]        Mr. Chahal paid $38,000 to Mr. Leach by official cheque on November 10, 2004.

[121]        From the outset of Mr. Chahal’s report to the Delta police, through the reports of loss to I.C.B.C., the initial recorded statement of August 31, 2005 and the statement on oath in December 2005, Mr. Chahal spoke of the price paid or value as $44,000 or $45,000.  Only in the case of the Proof of Loss form sworn on November 8, 2005, did he say he had researched the value.

[122]        I am unable to accept that he would not have known precisely the amount he paid as reflected in the official cheque.

[123]        I accept the reported value of the vehicle was material to the insurance corporation’s assessment of the claim and that the plaintiff sought to inflate the value of the vehicle.  Further, no evidence was led by Mr. Chahal to support the alleged value.

 

ICBC Claims, Medical Experts and Evasive Opinions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 45 Comments on ICBC Claims, Medical Experts and Evasive Opinions

Reasons for judgement were released today awarding a Plaintiff $50,000 for non-pecuniary loss (pain and suffering) as a result of injuries sustained in a 2004 rear-end BC car crash.
The Plaintiff suffered various injuries including chronic pain, a disc herniation in her neck, a soft tissue injury to her neck, anxiety and depression.  The chronic pain was the most significant symptom that was focused on at trial.
The Plaintiff called various witnesses to support her injuries including her family doctor.  The Defendant, on the other hand, relied on the opinion of an ‘independent medical examiner’ who ICBC frequently uses in the defence of car accident injury claims (Dr. Schweigel).
In awarding $50,000 for pain and suffering the Court made the following findings:

[26]            I am satisfied that as the result of the Defendants’ negligence, the Plaintiff suffered an injury to her shoulder and knee, a soft tissue injury to her neck and back which included a disc herniation; and an aggravation of her anxiety disorder and depression symptoms.

[27]            Specifically, with respect to her psychological injuries, I am satisfied that as a result of the collision her anxiety disorder and depression symptoms worsened, and that the worsening included the development of additional phobias such as a fear of crowds, social interaction, and driving.  There has been some improvement with respect to these symptoms.  For example, the Plaintiff is now able to drive her vehicle and her fear of social interactions has lessened some.

[28]            There has also been some improvement in her physical injuries.  In particular, her knee and shoulder injuries resolved within a short period.

[29]            As far as her chronic pain injury is concerned, I am satisfied that it arises primarily from the soft tissue injuries to her neck and back and from her disc herniation.  However, the severity of the pain from these injuries is aggravated or intensified by her anxiety disorders.  As her anxiety or stress levels increase, her chronic pain also increases in severity.

In ICBC injury claims judges and juries are often asked to pick between competing medical opinion evidence.  It is not uncommon to read reasons for judgment in ICBC injury claims where a Plaintiff’s treating physicians support injuries while ICBC’s doctors testify that the injuries are not related to the trauma or that the injuries are not as severe as presented by the Plaintiff.
In today’s case Madam Justice Sinclair Prowse gave the following reasons in preferring the treating doctor’s opinion over Dr. Schweigel’s.  Cases such as this one are worth reviewing for anyone preparing to take their ICBC injury claim to trial where there is competing medical evidence:

[34]            In any event, on all material issues, the Plaintiff’s evidence was consistent with and supported by other evidence.  In particular, the evidence of her injuries was supported by the evidence of her family doctor, Dr. Leong – a witness whom I found to be credible and on whose evidence I relied.

[35]            As the Plaintiff’s treating physician, Dr. Leong had seen the Plaintiff over a long period of time. Dr. Schweigel, on the other hand, only saw the Plaintiff on one occasion for about an hour to an hour and a half.

[36]            Throughout her testimony, Dr. Leong presented as a measured person who was endeavouring to be clear, accurate and fair.  Her answers were thoughtful and balanced.  Her testimony was both internally consistent and consistent with the other evidence.

[37]            For example, it was Dr. Leong’s opinion that the collision caused the Plaintiff’s disc herniation in one of two ways:  (1) either the collision caused the herniation completely; or (2) if the herniation pre-dated the collision, then the collision caused the herniation to become symptomatic.  This evidence was based on the fact that the Plaintiff did not display any symptoms of cervical disc herniation prior to the collision.  Although she had experienced some pain in her neck which had occasioned the earlier x-ray, that pain was occasional rather than chronic.  It was also different in kind from the type of pain that can arise from disc herniation and that the Plaintiff experienced after the collision.  Furthermore, the x-ray taken shortly before the collision did not show a disc herniation.

[38]            Dr. Schweigel, on the other hand, was evasive and argumentative in his evidence.  He gave opinions in this trial that were inconsistent with opinions that he had tendered in other trials, demonstrating that he was not impartial but, rather, tailored his evidence to favour the party that had called him.  For example, in this trial he opined that arthritis could not be triggered by trauma whereas in another action he gave the opposite opinion.

[39]            Dr. Schweigel opined that the Plaintiff had suffered a mild soft tissue injury to her neck and back as a result of this collision and that that injury had probably resolved itself within 3 to 4 months.  He opined that the disc herniation pre-dated the collision as such conditions can arise from a longstanding arthritic condition and that, in any event, the Plaintiff’s chronic pain arose from neither the herniation specifically nor the collision generally but, rather, from her psychological or psychosomatic problems.

[40]            However, during cross-examination, he did concede that trauma could trigger further degeneration. He further went on to testify that if this injury did not pre-date the collision, that it would probably have arisen within 2 to 3 years to a maximum of 5 years.  In my view, this opinion contradicts his initial opinion that a disc herniation cannot be caused by trauma or become symptomatic because of trauma.

[41]            For all of these reasons, I found Dr. Schweigel’s evidence to be unreliable.  I preferred the opinion of Dr. Leong.  Where her opinion differed from the opinion of Dr. Schweigel, I relied upon her opinion.

ICBC Injury Claims, Criminal Charges and Police Records

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

What kind of disclosure are you entitled to from the police if you are injured in a BC Car Accident that resulted from a criminal act?  For example, say you were injured by a drunk driver or someone fleeing from the police.  Are you entitled to the police departments records documenting their investigation in your ICBC claim or do you have to wait until criminal charges are finally dealt with?  Reasons for judgement were released today dealing with this issue.
In this case the Plaintiff was killed in a motor vehicle accident.  Charges were brought against the alleged operator of the vehicle alleging criminal negligence causing death.  In the ICBC claim the identity of the Defendant driver was put in issue.  The Plaintiff’s estate brought a motion seeking production of the Vancouver Police Departments documents concerning this accident.  The Attorney General, on behalf of the VPD,  opposed this motion.  Mr. Justice Pitfield ordered that the documents be disclosed finding that ‘the accused’ should not be in a better position with respect to the police evidence (such evidence typically gets disclosed to the accused as part of the criminal disclosure process) than the Plaintiff.  His key analysis can be found at paragraphs 43-47 of the judgment which I reproduce below:

[43]            The issue in the present application then is whether the actual or implied undertaking to refrain from using Crown disclosure documentation for any purpose other than making full answer and defence should be modified to permit disclosure to a plaintiff in a related civil action in which the accused is a defendant.  A number of factors must be considered:

1.         As with any request for production, the requested documentation or the information that may be derived from it, must relate to an issue in the proceeding in which use of the documentation is intended.

2.         The information likely to be obtained from the documentation must not be available from other sources, thereby necessitating production.

3.         The public interest in ensuring the conduct of a prosecution in a manner that is fair from the perspective of both the Crown and the defence must be balanced against the private interest of ensuring the capacity of a plaintiff to advance a bona fide and meritorious claim in a civil action.  In other words, the balance of convenience must favour disclosure.  As the Ontario Court of Appeal said in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, [2004] O.J. No. 2053, at para. 53:

53.       …Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court.  The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.

[44]            The court may be required to engage in a screening process conducted with the participation of Crown, police and defence in order to identify the documentation that must be produced and to ensure that the preconditions to production have been satisfied.  The screening process will only be avoided in the event that consent to production is forthcoming.

[45]            I am persuaded by the affidavit evidence that documents in the VPD file that may afford evidence of, or point to the source of evidence regarding, the operator of the vehicle involved in Mr. Wong’s death and its manner of operation, are relevant and material in so far as the family compensation action is concerned.  I am also satisfied that the evidence cannot be obtained by the plaintiff from other sources available to him.  The plaintiff does not possess any of the investigative tools that were likely employed by the VPD in its attempts to identify the driver.

[46]            The remaining question is whether the balancing of the public and private interests should result in production of the relevant documents at this point in time.  The Crown has tendered affidavit evidence suggesting that the criminal prosecution might be jeopardized by disclosure of any documents to the plaintiff because the material might find its way to potential witnesses, to the jury pool, or to persons who could seek to subvert the course of justice.  While the affidavit evidence contains general statements of possible adverse effects resulting from premature disclosure, it does not identify any specific concerns in the context of the Antunes prosecution.  Moreover, the possibility of any adverse effect can be materially reduced, or eliminated, by an appropriate undertaking from counsel and the plaintiff in the civil action.

[47]            In sum, I can see no reason why, in the circumstances, the accused should be in a position to know of the police evidence or sources of evidence pertaining to the identity of the driver and the allegation of negligent operation of a motor vehicle, but the plaintiff who sues on behalf of the victim of the operator’s negligence should not.  

ICBC Injury Claims, Trials and Disbursements

Written by admin on . Posted in Civil Procedure, Uncategorized. 1 Comment on ICBC Injury Claims, Trials and Disbursements

Generally speaking it can be very expensive to bring an ICBC injury claim to trial in British Columbia.  I’m not talking about lawyers fees here.  There are many very well qualified personal injury lawyers in BC who handle ICBC injury claims on a ‘contingency basis’ and most Plaintiffs with a good claim have the luxury of shopping around finding a lawyer that is the right fit for them.  What I’m referring to is the actual out of pocket cost of bringing a case to trial in the British Columbia Supreme Court.  These are called ‘disbursmemnts’.
Most ICBC injury claims focus heavily on the nature and extent of car accident related injuries.  To properly present such a case in court expert opinion evidence is necessary.  Doctors are entitled to charge fees for providing this service and these fees can quickly get into the thousands of dollars, particularly with complex injury cases such as brain injury claims and chronic pain disorders.  Other fees, such as court filing fees, witness fees, process servers fees, photocopying expenses (these can quickly add up particularly in ICBC jury trials where multiple copies of all exhibits must be made) are also commonly incurred.
Most lawyers that advance ICBC injury claims on a contingency basis fund the disbursements to bring the case to trial.  After judgement the court has certain powers set out in the Rules of Court to award the victorious party their ‘costs and disbursemnts’.  If the parties can’t agree on which disbursements were reasonable an application can be made to the Court to make a ruling.
Reasons for judgment were released today dealing with the issue of ‘reasonable disbursements’ following a BC personal injury claim.  Some of the more interesting expenses allowed, from my perspective, were 3 MRI scans paid for privately through Canadian Medial Imaging.  These were allowed because “(a doctor) clearly did recommend an MRI to try to assess the cause of (the Plaintiff’s) ongoing problems”.  Also, the Trust Administration Fee (a fee lawyers must charge in BC when opening a new file) was held to be reasonable and the Defendant was ordered to pay this cost.  
While this judgement does not create any new law it is worth reviewing to see the types of expenses that are sometimes incurred in prosecuting ICBC injury claims and to see how the BC Supreme Court deals with the issue of reimbursement of these expenses.  If you are advancing an ICBC injury claim in the BC Supreme Court you should keep judgement such as this one in mind when deciding what expenses you will incur while preparing your case for trial.

ICBC Injury Claims "Collateral Benefits" and the Rule Against Double Recovery

Written by admin on . Posted in Civil Procedure, Uncategorized. 66 Comments on ICBC Injury Claims "Collateral Benefits" and the Rule Against Double Recovery

Imagine if you are injured through the fault of another BC motorist and become disabled from work.  You are lucky enough to have wage loss disability benefits through your employment (or your spouse’s employment). When you advance your ICBC injury claim are you entitled to claim your past wage loss or will you be prohibited in claiming this money from ICBC because you already received money for past wage loss from your private insurer?  The short answer is you can claim this money provided that you paid some consideration for receipt of your private insurance benefits.  
Reasons for judgment were released this week by the BC Supreme Court dealing with the ‘private insurance’ exception to the rule against ‘double recovery’ in BC tort claims.
In this case the Plaintiff was injured in a BC car crash.  She needed therapies to treat her injuries.  The cost of these therapies were covered largely through an extended health plan through her husband’s employment.   The issue to be decided at trial was whether the Plaintiff could recover the actual costs of her therapies or only that portion not covered by the private insurer.
Madam Justice Bruce summarized the law addressing the ‘private insurance’ exception to the rule against double recovery as follows:

[7]                The general rule in an action for damages arising out of negligence is that the plaintiff is only entitled to be restored to the position she would have been in had the accident not occurred. The plaintiff is awarded damages for her actual loss and no more: Cunningham at para. 5 per McLachlin J. (dissenting in part)

[8]                The law has recognized a limited exception to the rule against double recovery which is referred to as the “private insurance” exception. In Cunningham at para. 75 Mr. Justice Cory, speaking for the majority, adopts the following passage from Bradburn v. Great Western Rail Co., [1874-80] All E.R. 195 as accurately describing the underlying rationale for the exception:

… I think that there would be no justice or principle in setting off an amount which the plaintiff has entitled himself to under a contract of insurance, such as any prudent man would make on the principle of, as the expression is, “laying away for a rainy day”. He pays the premiums upon a contract which, if he meets with an accident, entitles him to receive a sum of money. It is not because he meets with the accident, but because he made a contract with, and paid premiums to, the insurance company, for that express purpose, that he gets the money from them. …and I think that it ought not, upon any principle of justice, to be deducted from the amount of damages proved to have been sustained by him through the negligence of the defendant.

[9]                Whether the plaintiff has paid for private insurance or has obtained these benefits through an employment contract, the exception will apply. It is also irrelevant that it is the plaintiff’s husband who secured these benefits. See, Brennan at para. 182-3. However, the onus rests with the plaintiff to prove he or she has paid for the provision of insurance benefits in some fashion. As Cory J. says in Cunningham at para. 94:

In my view, Ratych v. Bloomer, supra, simply placed an evidentiary burden upon plaintiffs to establish that they had paid for the provision of disability benefits. I think the manner of payment may be found, for example, in evidence pertaining to the provisions of a collective bargaining agreement just as clearly as in a direct payroll deduction.

[10]            There is no evidence before the court as to what, if any, consideration passed between Mr. Napoleone and his employer in respect of the extended health benefits. There is no evidence of whether Mr. Napoleone pays all or a portion of the insurance cost or whether it was negotiated as a part of a collective bargaining scheme. The only evidence before the court is that the plan was secured through Mr. Napoleone’s employer and it covers 80% of Mrs. Napoleone’s health related expenses.

[11]            Without an evidentiary foundation to support the claim, I am unable to apply the private insurance exception to the case at hand. As Cory J. says at para. 93 of Cunningham, it is only when this evidentiary requirement is met that the court may be satisfied the plaintiff has shown the prudence and corresponding deprivation that underlies the exception and permits double recovery.

[12]            For these reasons, I must dismiss Ms. Napoleone’s claim for the gross cost of the special expenses.

This case shows that it is essential to lead evidence at trial that there was some cost associated with being entitled to receive the collateral benefits to be able to receive compensation for the losses those benefits covered in an ICBC tort claim.  This can be done in any number of ways such as showing deductions from a paycheque to pay for a private insurance plan or showing that the private insurance was negotiated from the employer at the expense of some salary.  This is a particulary important matter to think about when preparing for trial if you signed a ‘reimbursement agreement’ with you private insurer to pay back the benefits.  

Pain and Suffering and Your ICBC Claim

Written by admin on . Posted in Uncategorized. 68 Comments on Pain and Suffering and Your ICBC Claim

One of the most common questions asked of me through this blog is “how much is my Pain and Suffering worth in my ICBC personal injury tort claim?”.  The answer to this, of course, depends on various factors and who better to discuss these than a BC Supreme Court judge?
On that point, reasons for judgement were released today discussing the law of ‘pain and suffering’ in tort claims.  Pain and Suffering is awarded under the legal head of damage called “Non-Pecuniary Loss”.  Non Pecuniary Loss includes damages for “pain and suffering, loss of enjoyment of life and loss of amenities”.
In today’s case $70,000 was awarded in non-pecuniary damages as a result injuries sustained in a 2005 BC car crash.  In doing so Madam Justice Russell summarized the law of non-pecuniary damages ar paragraphs 104-105 of the judgment as follows:

Non-pecuniary damages

[104]        The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[105]        There are a number of factors that courts must take into account when assessing this type of claim.  The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering; and

(f)      loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

Cases such as this one are key in helping one understand the principles behind awards for pain and suffering in ICBC tort claims.  Once the general principles of this head of damage are understood, the extent of injuries and prognosis known, and cases with similar injuries are canvassed the easier it will be to value the potential range of damages for pain and suffering in an ICBC personal injury (tort) claim.

ICBC Personal Injury Claims, Lawyers and Trust

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I have previously written about some practical things to consider for people wishing to  fire their ICBC Injury Claims Lawyer.

Today while stuck at the Kelowna Airport waiting to fly back to Victoria and got to chatting with a fellow traveler who was contemplating firing his accountant.  Hearing this and the reasons for it made me think of sharing some further thoughts on the topic of hiring/firing an ICBC Claims Lawyer.  And being stuck in an airport I have plenty of time to do so!

Trust.  Trust is the most important factor in having a successful relationship with your ICBC Injury Claims Lawyer.  Trial experience, past settlement results, experience with your type of case, whether your lawyer sometimes acts for ICBC, whether your lawyer signed the SAA are all very important factors to consider when hiring an ICBC Injury Claims Lawyer but nothing can undo a relationship between a lawyer and client faster than lack of trust.

Your ICBC Injury Claims Lawyer will have to give you advice on many topic most importantly, advice on what a fair range of settlement is.  If you don’t trust that your lawyer is taking your claim seriously and don’t trust his/her advice it will be difficult if not impossible to make an informed decision regarding whether to settle your ICBC injury claim or proceed to trial.

Settlement offers are made in almost all ICBC personal injury claims.  Your lawyer’s job is to give you advice on the merits of any offer and to offer a ‘risk assessment’ about the potential benefits and pitfalls of trial.  You must trust that your ICBC Injury Lawyer is giving you good advice otherwise you risk making a poor decision.  If you don’t trust your lawyer your decision-making ability will be compromised and this can lead to very unfair results.  For example you may take a settlement offer that your lawyer says is unfair because you don’t trust his/her judgment or on the other hand you could proceed to trial, lose and face significant ‘costs’ consequences after failing to heed advice that an ICBC settlement offer is fair and should be seriously considered.

Trust goes to the heart of a lawyer/client relationship and if this is missing then a claim may be compromised.  So what can be done?  If there is a lack of trust the first and most important thing you should do is communicate this to your lawyer.  Try to work through the problem.  Make your lawyer make time for you.  Most ICBC Injury Claims Lawyers work on a contingency basis meaning they don’t bill you for every phone call, e-mail or meeting.  Make time to sit down and speak with your lawyer and work through any perceived problems.  This will likely cost you nothing and can go a long way to building up a mutual trust which will help your lawyer get a good result for you.

 If, after all reasonable efforts, you still can’t build a level of trust in your lawyer you will need to seriously consider retaining new counsel.

The bottom line is this: If you run into problems in your legal relationship you should talk to your lawyer.  He/she works for you and you are entitled to have all of your questions answered.  Put effort into working things through.  If things can’t be worked out consider moving on.  You don’t want to second guess yourself when you decide if and how you resolve your ICBC Personal Injury Claim.

Rule 37 Dies a Natural Death

Written by admin on . Posted in Civil Procedure, Uncategorized. 43 Comments on Rule 37 Dies a Natural Death

As most frequent visitors to this blog know, Rule 37 of the BC Supreme Court Rules (the rule that dealt with formal settlement offers and costs consequences in BC Supreme Court trials including ICBC personal injury claims) was replaced this summer with Rule 37B.  Rule 37B builds in a lot of judicial discretion in the process of awarding ‘costs’ to litigants where a formal offer was made compared to the old Rule 37 which had strict consequences resulting when a formal offer was made and beat at trial.
In what will likely be one of the last BC court cases dealing with the old Rule 37, unanimous reasons for judgment were released today by a 5 member panel of the BC Court of Appeal ruling that the old Rule 37 is not incompatible with the Negligence Act and both can work in harmony.
In this case the Plaintiff sued for injuries sustained as a result of a motor vehicle collision.  Pre-Trial the Defendant made a settlement offer under the old Rule 37 for $150,000.    The Plaintiff rejected this offer and proceeded to trial.  The trial judge found that the Plaintiff was 50% at fault and awarded damages of just over $56,000.
Having found that the Plaintiff was 50% at fault he awarded her 50% of her costs to the date the formal offer was made by the Defendant.  Since the Defendants ‘beat’ their formal offer the Court ordered that the Plaintiff pay all of the Defendants Tariff costs from the date of the formal offer through to trial.   This award of costs was apparently so significant that the Plaintiff ended up owing the Defendant money.
The Plaintiff appealed arguing that Rule 37 was in conflict with the Negligence Act, the relevant portions of which read as follows:

2.         The awarding of damage or loss in every action to which section 1 applies is governed by the following provisions:

(a)        the damage or loss, if any, sustained by each person shall be ascertained and expressed in dollars;

(b)        the degree to which each person was at fault shall be ascertained and expressed as a percentage of the total fault;

(c)        as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss shall be entitled to recover from that other person the percentage of the damage or loss sustained as corresponds to the degree of fault of that other person;

(d)        as between 2 persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled shall be set off one against the other, and if either person is entitled to a greater amount than the other, he shall have judgment against that other for the excess.

3.         Unless the court otherwise directs, the liability for costs of the parties to every action shall be in the same proportion as their respective liability to make good the damage or loss. The provisions of section 2 governing the awarding of damage or loss apply, with the necessary changes and so far as applicable, to the awarding of costs, with the further provision that where, as between 2 persons, one is entitled to a judgment for an excess of damage or loss and the other to a judgment for an excess of costs there shall be a further set off of the respective amounts and judgment shall be given accordingly.

The relevant of the old Rule 37 read as follows:

R. 37(24) read:

37(24)  If the defendant has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted,

(a)        if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered, and the defendant is entitled to costs assessed from that date.

(b)        if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

The Plaintiff asked the Court of Appeal to find that Rule 37 was trumped by the Negligence Act and to adjust the costs award accordingly.
The Court of Appeal dismissed this argument finding that Rule 37 and the Negligence Act are not in conflict with each other and can stand together.  The Courts key analysis is set out at Paragraph 29 of the Reasons which I set out below:
[29]            I do not find this analysis altogether persuasive.  I would have thought that the Act, as superior legislation to the Rules, would be looked to first to determine each parties’ liability for costs in a situation to which s. 2 of the Act applies, and that R. 37, as an item of subordinate legislation, would then be applied if possible. Applying the classic definition of “conflict” – whether the two laws can “stand together and … operate without either interfering with the other” (see Tabernacle Permanent Building Society v. Knight [1892] A.C. 298 (H.L.) at 302, and the leading Canadian case, Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1 at para. 42) – however, I agree with the Court’s conclusion in Smith v. Knudsenthat s. 3 of the Negligence Act and R. 37(24) do not conflict.  I reach this conclusion not only on the basis of the opening phrase of s. 3, but also on a close construction of the Act.  As was held in Flatley, the phrase “person sustaining the damage or loss” in s. 2(c) is apt to refer only to the plaintiff in any case in which the defendant sustained no injury or damage.  Section 3 states that each party’s liability for costs shall be in the same proportion as his or her liability to make good the damage or loss.  Having sustained no damage or loss, the defendant has no ‘entitlement’ to recovery under s. 2(c) and thus his or her liability for costs does not “track” under s. 3.  As McFarlane J.A. stated in Lutes, s. 2(c) “does not provide for the awarding of damages as between persons who are at fault.  This sub-section cannot apply to entitle [a defendant] to recover anything because he has sustained no damage or loss.”  (Supra, at 466.)
This will be, in all likelihood, one of the last judgements dealing with the old Rule 37.  I look forward to continue reporting on judgements dealing with the new Rule 37B particularly in the context of ICBC injury claims.