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ICBC Defence Lawyers and Ethical Obligations to their Client

Written by admin on . Posted in Uncategorized.

I have previously blogged about ICBC lawyers and ethics obligations and I write more on this topic.
If you are sued for a BC car accident and are insured by ICBC they will appoint a lawyer to defend your claim.  That lawyer has 2 potentially conflicting duties, they are 
1.  To you the client
2.  To ICBC (the client that is paying the bills)
This ‘joint retainer’ is permitted by the Law Society of BC provided that the interests of YOU THE CLIENT and ICBC don’t conflict.  If there is a conflict the lawyer must withdraw form the joint representation.
The Law Society’s Ethics Committee published information recently to hep ICBC defence lawyers to “avoid allegations of bad faith and professional negligence‘.  I thought this would be useful information for members of the public as well, particularly for anyone who may be concerned about the approach that a lawyer appointed by an insurance company in the defence of a tort claim is taking.  
Below is the article in it’s entirety which I am reproducing from the Law Society’s website:
http://www.lawsociety.bc.ca/publications_forms/alert/03-02.html

Avoiding allegations of “bad faith” and professional negligence in defending third-party liability claims

A lawyer appointed by an insurer to defend a third-party liability claim has two clients: the insurer and the insured. The lawyer owes obligations to both clients and, as discussed below, the insurer owes obligations to the insured. Care must be taken by the lawyer to identify and avoid conflicts of interest between the two clients and to ensure that they are both fully protected.

The words “bad faith” might conjure up the image of an uncaring lawyer who allows an insurer to disregard the interests of an insured when handling the defence of a claim. Such an approach by a lawyer is in fact very rare – almost without exception, counsel who are appointed to defend third-party liability claims recognize their obligations to both clients and do their best to provide thorough and timely advice as well as competent service. However, with the increasing size of damage awards, situations where there is inadequate insurance are becoming more frequent.

Although allegations of bad faith and professional negligence can arise in various circumstances, the risk is greatest when the insured faces a potential claim for damages for an amount greater than the available third-party insurance policy limits. Claims against insurers and defence counsel by insureds who find themselves facing large judgments in excess of their policy limits tend to fall into two broad classes:

  • failing to settle the case before trial for an amount within the policy limits, or
  • failing to provide a full defence and thus minimize the extent of the excess judgment.

It is almost invariably the insurer who has the ultimate power to make decisions about settlement and conduct of the defence. However, when an insured claims that the insurer has breached its good faith obligations in this regard, the insured and in some cases even the insurer may seek to shift blame for this to defence counsel.

Staying out of hot water

The Lawyers Insurance Fund has received increasing numbers of reports in recent years relating to the defence of actions arising out of motor vehicle accidents. A review of them gives rise to a number of observations and suggestions. These may help BC lawyers avoid being drawn into bad faith litigation if there is a judgment in excess of the available insurance limits:

  • Write to the insured at the outset to advise of the retainer, its scope and its limitations. Be sure that the insurer is also aware of the scope and limitations of the retainer.
  • Once appointed to defend, do not advise either party on insurance coverage issues. Do not act on behalf of the insurer in any action relating to insurance coverage issues (including Part 7 actions). Be aware of what the coverage issues are, so that you can identify conflicts and avoid them.
  • If there is a possibility of a claim exceeding the limits, write to the insured advising of the risk of an excess judgment and the insured’s personal exposure to execution, recommend independent legal advice, advise of the possibility of conflicts of interest and explain your limited role – the defence of the case only. Instructions from the insurer are not required to send this letter. If the insurer has already provided such notice to the insured, review it for sufficiency.
  • Consider recommending that the insurer obtain independent legal advice on any coverage issues and its obligations to its insured. Many insurers will be well aware of the need to do so, but there may be circumstances where it is appropriate to remind the insurer that such matters are not part of your role as defence counsel.
  • Consider recommending that the insurer pay for independent counsel for the insured where there is significant uninsured exposure and where the insured is unable or unwilling to pay for counsel.
  • Keep the insurer and the insured or insured’s independent counsel fully informed of all material information and developments. This includes providing copies of all reports to the insured or independent counsel.
  • As with any case, conduct an investigation and assessment of liability and quantum and be alive to the need to revisit these issues with the emergence of additional information. If expert evidence may be helpful, seek instructions to obtain it. If there may be contributory negligence, seek instructions to develop the evidence to prove it.
  • Be aware of and advise the insurer and the insured or independent counsel of all possible sources of recovery, including other insurance and third-party claims. It may be appropriate to advise independent counsel or the plaintiff’s lawyer that other possible sources of recovery could be pursued.
  • Insurers are becoming increasingly concerned to limit defence costs. As an outgrowth of that concern, counsel are often put on a “short leash.” Be vigilant to ensure that the duties owed to the insured are not compromised by paying too much attention to the insurer’s concern with the “bottom line.” Most often these matters are capable of being resolved through a frank and open dialogue with the insurer. In those rare cases when a disagreement remains between counsel and the insurer on what is required to provide a full defence, advise the insurer and the insured or independent counsel of those concerns.
  • Avoid making any admissions without the informed consent of the insured.
  • With respect to settlement negotiations, advise both the insurer and the insured, or the insured’s independent counsel, of all offers made by other parties. Provide recommendations on all offers received and on offers that could be made on behalf of the insured. Address settlement at all stages of the litigation, even the early stages if it is apparent that the claim is likely to exceed the limits. When offers are extant, follow up to obtain instructions promptly.
  • Be alive to the possibility of conflicts at all times. When acting for more than one defendant, consider whether there are any conflicts between them.
  • Record your advice, instructions and steps taken in writing.

Most cases settle shortly before trial, a time when you will be preoccupied with preparation for trial. By addressing the issues outlined above well in advance, you will help ensure that the insurer and the insured are better prepared to address their relationship with respect to coverage and settlement issues should these arise immediately before trial.

The insurer’s duty to the insured

The leading two cases in BC respecting “bad faith” claims against insurers are Fredriksonv. Insurance Corporation of British Columbia (1990) 44 BCLR (2d) 303 (SC) and Shea v. Manitoba Public Insurance Corp. (1991) 55 BCLR (2d) 15 (SC). Both decisions arise out of motor vehicle accident claims, although most of the principles will likely apply in the handling of other liability cases. Defence counsel should be familiar with each case. As noted, when insurers breach their duties of good faith, defence counsel may be drawn into ensuing bad faith litigation for alleged failure to prevent this from happening.

In Shea, Finch, J. (as he then was) recognized the legitimate interest of an insurer to try to effect a saving on the policy limits if there exists a reasonable prospect of settling the claim for less than the limits (as was the case in Fredrikson). However, the insurer has no legitimate interest in trying to settle a claim for less than the policy limits when it is clear (as it was in Shea) that the claim will exceed the available coverage.

The obligations of an insurer to its insured, where the insured faces an excess exposure, were summarized by Finch J. in Shea, as follows:

I would summarize my view of the law touching on the insurer’s duty to its insureds in the circumstances of this case as follows:

1. The relationship between insurer and insured is a commercial one, in which the parties have their own rights and obligations;

2. Within the commercial relationship, special duties may arise over and above the universal duty of honesty, which do not reach the fiduciary standard of selflessness and loyalty;

3. The exclusive discretionary power to settle liability claims given by statute to the insurer in this case, places the insured at the mercy of the insurer.

4. The insureds’ position of vulnerability imposes on the insurer the duties:

a) of good faith and fair dealing;

b) to give at least as much consideration to the insureds’ interests as it does to its own interests; and

c) to disclose with reasonable promptitude to the insured all material information touching upon the insureds’ position in the litigation and in the settlement negotiations;

5. The fact that the insured is at the mercy of the insurer for the purposes of settlement negotiations gives rise to a justified expectation in the insured that the insurer will not act contrary to the interests of the insured or will at least fully advise the insured of its intention to do so;

6. While the commercial nature of the relationship permits an insurer to assert or defend interests which are opposed to, or are inconsistent with, the interests of its insured, the duty to deal fairly and in good faith requires the insurer to advise the insured that conflicting interests exist and of the nature and extent of the conflict;

7. The insurer’s statutory obligation to defend its insured imposes on the insurer, where conflicting interests arise, a duty to instruct counsel to treat the interests of the insured equally with its own; and where one counsel cannot adequately represent both conflicting interests, an obligation to instruct separate counsel to act solely for the insureds, at the insurer’s own cost;

8. The insurer’s duty to defend includes the obligation to defend on the issue of damages, and to attempt to minimize by all lawful means the amount of any judgment awarded against the insured. In this case, that would include arguing that court order interest and no fault benefits are payable in addition to the policy limits, where such an argument is available in law; and

9. Defence preparations and settlement negotiations must take place in a timely way and, where last minute negotiations are required, advance planning must be made to ensure that the insureds’ interests are given equal protection with those of the insurer.

*  *  *

If an insurer complies with these guidelines, there is little likelihood that a claim will be advanced against the insurer for bad faith or against counsel for professional negligence.

$1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases. 62 Comments on $1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

Reasons for judgement were released today awarding a Plaintiff nearly $1.3 million in damages as a result of a 2002 motor vehicle collision which occurred at UBC.
The Plaintiff was a pedestrian at the time.  She was struck while walking in a marked crosswalk on a dark and rainy evening.  Both fault and quantum (value of the ICBC claim) were at issue at trial.
The court found that the defendant driver was 100% responsible for the collision.  At paragraph 8 Madam Justice BJ Brown noted that
[8]                In my view, (the Defendant) is 100% responsible for the accident.  She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space.  She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes.  Indeed, she was picking her husband up from teaching a class. 
The Plaintiff was a PhD student looking to earn her degree in chemistry at the tine.  The court found that she suffered some significant injuries which are summarized at paragraph 69 of the judgement:
[69]            (the Plaintiff’s) condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident.  It developed over the days and weeks following the accident, as (the Plaintiff) complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”.  Her complaints exceeded the physical signs. 
The court assessed damages as follows:

(i)

Non-pecuniary damages

$   100,000.00

(ii)

Loss of income/capacity:

Future:

Past:

 

$1,000,000.00

$   150,000.00

(iii)

Cost of future care

$     25,000.00

(iv)

Loss of housekeeping capacity

$     15,000.00

(v)

Special damages

$       4,279.53

In noting that $1,000,000 was appropriate in loss of earning capacity, the court noted that ‘chronic conversion disorder, such as demonstrated by (the Plaintiff), usually evolved into a chronic illness.  Despite treatment, the majority of these patients fail to return to work.  Accordingly, it is unlikely that (the Plaintiff) will earn any significant amount of the course of her lifetime.’
This case is worth reviewing for anyone advancing a contested pscyhological injury claim with ICBC as it gives insight into the complexity involved in prosecuting such cases.

More on Rule 37-B

Written by admin on . Posted in Civil Procedure. 59 Comments on More on Rule 37-B

The first decision that I’m aware of was released today dealing with the costs consequences of accepting a Rule 37 offer under Rule 37B.
The full background facts are not necessary for this narrow post.  In this case the defendants made an offer to settle for $6,000.  This offer was made in compliance with the now repealed Rule 37.  The offer was made (and accepted) while Rule 37 was still in effect.
The parties could not agree to whether a formal settlement was agreed to nor what the costs consequences were.  The Plaintiff applied to court to enforce the settlement.  The court application was not heard until October, 2008 (well after Rule 37 was repealed and replaced with Rule 37B)
Mr. Justice Rogers held that in these circumstances a settlement did exist and that Rule 37B is applicable.
Particularly he noted that:
[10]            Like the parties, I am satisfied that the original claim advanced by the plaintiffs in their statement of claim was settled by the parties’ exchange of offer and acceptance.  There will, therefore, be a declaration that the plaintiffs’ claims against the defendants arising out of the writ and statement of claim have been settled.  There will be a declaration that the settlement price to be paid to each of the plaintiffs is $6,000….

[14]            As to whether Rule 37B applies to the present case, I believe that it does.  I have come to that conclusion because the rule permits the court to consider an offer to settle, including one made under Rule 37 but with respect to which no order has been made, when exercising the court’s discretion in relation to costs:  Rule 37B(4).  The court’s discretion relating to costs is engaged when a party asks the court to make an order.  In the case of an accepted offer to settle, a party may ask the court for a declaratory order or it may apply for judgment in the terms of the settlement.  Upon such an application, the court will have discretion as to costs with respect to the application itself and with respect to any costs contemplated by the settlement.

[15]            In the present case, the accepted offer did contemplate costs in the plaintiffs’ proceeding.  Those costs were under Rule 37, but that rule has been replaced.  The costs contemplated by the settlement must now be taken to be costs under Rule 37B.  Therefore, the plaintiffs’ present application for a declaration that their action has been settled engages the court’s discretion under Rule 37B with respect to the costs of the application itself, and also of the plaintiffs’ proceeding as a whole.

[16]            As noted above, the plaintiffs argue that the court should exercise its discretion in their favour for those steps taken in the litigation up to the date that the defendants delivered their offers to settle.  The defendants argue that no order for costs should be made until the counterclaim has been concluded.

[17]            Because the issue of the plaintiffs’ costs of the now settled action falls to be decided under Rule 37B, the court must examine that rule to learn what principles will guide its decision.  As to those principles, the new rule says:

(6)        In making an order under subrule (5), the court may consider the following:

(a)        whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)        the relationship between the terms of settlement offered and the final judgment of the court;

(c)        the relative financial circumstances of the parties;

(d)        any other factor the court considers appropriate.

[18]            This provision makes it clear that the Legislature intends the court to at least consider conducting a detailed examination into, among other things:  the circumstances that pertained at various stages of the litigation relating to the party’s knowledge of the strength of its own case and that of its opponent; if the case has gone to trial, the proportionality of the offer to the judgment; and the financial circumstances of all of the parties involved.  Presumably, that detailed examination will be based on some form of properly admissible evidence.

[19]            The scope of the inquiry that the court is expected to make before awarding costs under Rule 37B is, therefore, much wider than was the case under its predecessor rule.  Furthermore, the parties to a piece of litigation have, I think, a legitimate expectation that the court will at least put its mind to the factors set out in Rule 37B(6).  This raises the question of whether there may be cases where the court can properly decline to analyze a case in light of the factors set out in Rule 37B(6).  About that I will say nothing definitive, except that this case does not appear to me to be one in which it would be judicious to ignore Rule 37B(6).

No order as to costs was made in this case because “the parties have not adduced sufficient evidence on this application to permit the court to conduct a detailed examination of the factors outlined in Rule 37B(6).”

This is certainly far from the last of the judicial development of this new settlement rule.  I will continue to post and comment about Rule 37B cases as they are released by the BC Supreme Court.

$70,000 Non Pecuniary Damages for Disc Herniation and Labral Tear

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases. 1 Comment on $70,000 Non Pecuniary Damages for Disc Herniation and Labral Tear

Reasons for judgement were released today awarding a Plaintiff close to $120,000 in damages as a result of a 2006 BC car accident.
The accident occurred when the Defendant failed to see the Plaintiff’s vehicle and struck the driver’s side door of the Plaintiff’s vehicle.
All the doctors who gave evidence at trial agreed that the Plaintiff ‘suffered a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain…’
The issue at trial was one of causation, that is, did this accident (which apparently did not cause a lot of vehicle damage) cause the Labral tear?  After hearing from several medical witnesses Madam Justice Gerow concluded that there was a causal connection, finding that ‘I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that (the Plaintiff’s) degenerative disease is minimal at this point.’
Dealing with the argument ICBC often makes at LVI trials (low velocity impact) that ‘the force of the accident was not such that it could have caused the injuries to the lumbar spine’ Madam Justice Gerow stated as follows:

35]            The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle.  The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries. 

[36]            Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered.  The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37]            As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.

In the end, damages were assessed as follows:

Non Pecuniary Damages: $70,000

Past Wage Loss: $13,452

Loss of Earning Capacity: $30,000

Special Damages: $1,498

Cost of Future Care: $5,000

This case is worth reading for anyone advancing an ICBC claim where the issue of causation of a disc bulge is at issue to see the types of competing positions that can be advanced by the doctors at trial along with the analysis that a court can engage in to navigate the waters of expert opinions.

Prejudicial Closing Arguments and the Law in BC

Written by admin on . Posted in Civil Procedure.

Reasons for judgement were released today dismissing a Plaintiff’s appeal of an award of $0 as a result of a BC motor vehicle accident.
The Plaintiff was allegedly injured in a rear end accident.  He sued claiming on-going consequences from a closed head injury and a whiplash type of soft tissue injury to his neck and back.   After a 5 week jury trial in 2007 the jury found the other motorist at fault but awarded $0 as they found that this collision did not cause any injury to the Plaintiff.
The Plaintiff appealed for various reasons including a claim that the defence lawyer made ‘improper prejudicial statements‘ in his closing argument to the jury.
The BC Court of Appeal Dismissed the case finding that while some of the statements ‘may have been cause for concern (plaintiff’s counsel) took no exception and did not ask the judge to provide any direction to the jury in respect of any aspect of the defence address.’ In dismissing the appeal the Court summarized the law as follows:

[23]            This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial.  In Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, the Chief Justice explained:

[52]  In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions.  Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice.

[53]  It is, however, recognized that there may be exceptional circumstances which merit a new trial, despite a failure on the part of counsel to object to an address: Dale v. Toronto Railway (1915), 24 D.L.R. 413 (Ont. C.A.).  In R. v. Jacquard, [1997] 1 S.C.R. 314 (S.C.C.), the court declined to adopt a strict rule that the failure to object to a jury charge invariably waives the right of appeal.  Lamer, C.J.C. noted: “Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials”.  [Emphasis of Finch C.J.B.C.]

[54]  In Basra v. Gill (1994), 99 B.C.L.R. (2d) 9 (B.C.C.A.) the court recognized that where there is a “substantial wrong or miscarriage of justice” a new trial may be required, even in the absence of an objection.

[55]  In my opinion, failure of counsel to make a timely objection to irregular or improper proceedings at trial is and must remain, an important consideration in determining whether there has been a miscarriage of justice.  That consideration, however, is to be weighed against the nature and character of the irregularity or impropriety complained of.

[24]            The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial.  The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all.  (the Plaintiff’s) counsel said nothing other than what he said in reply.  If he had sought it, some instruction might have been given.  It was apparently thought to be unnecessary. 

This case, and others like it, go to show that it is difficult to succeed in an appeal when alleged improper conduct is not complained about when it occurs at the trial level.

ICBC Claims and the Thin Skull Principle

Written by admin on . Posted in Uncategorized. 104 Comments on ICBC Claims and the Thin Skull Principle

If you are injured through the fault of another in a BC motor vehicle accident and are an average person and receive average injuries you are entitled to be compensated for these.  What if you are not an average person? What if you are particularly prone to traumatic injury?  Would you be entitled to your actual damages or only those damages that the average person should have received?   The answer is actual damages.
There is a principle in law known as the ‘thin skull‘ principle sometimes referred to as the ‘you take your victim as you find them‘ principle.  If a person is careless and that carelessness causes injury it is no defence to say that the victim was particularly prone to injury or that the injury would have been less if the victim was tougher.  So long as the injuries are real and related to the wrongdoing the injued party will be entitled to their fair damages.
Reasons for judgement were relesed today involving a claim for significant emotional damages as a result of a 1999 BC motor vehicle accident.  The claim was largely dismissed but in doing so Mr. Justice Chamberlist reviewed several important legal principles of BC tort law including the Thin Skull Principle.    The court reference some of the leading authorities and set out the law at paragraph 11 of the judgement.  I set this out below.  

[11]            Commencing at para. 19, Mr. Justice Cumming succinctly set forth the law as follows:

19        One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, a tortfeasor must take the person injured by the tort in the actual condition of that person at that time.  This has been called the “thin skull” principle.  In its application to psychological problems it has been called the “egg shell personality” application of the principle.  In my opinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered than would be given in cases where only physical injuries are suffered.  A predisposition to suffer psychological injury in circumstances such as those brought about in a particular injury in circumstances such as those brought about in a particular case by a defendant’s wrongful act does not relieve the defendant of the liability to compensate the plaintiff for the injuries represented by those psychological symptoms.  Such relief could only occur, as I have said, if the psychological symptoms would have occurred in any event, even without the defendant’s wrongful act, through an application of the cause-in-fact test.  Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances where there was an existing predisposition include Enge v. Trerise (1960), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 17 C.C.L.T. 138 (Ont. C.A.), Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.), and Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.)

20        So, in this case, the evidence of Dr. Davis, accepted by the trial judge, to the effect that the plaintiff had a pre-existing disposition towards the psychological symptoms which actually occurred has no relevance in itself in the assessment of damages, as long as the first causation principle of cause-in-fact is met by it being established that the psychological symptoms would not have arisen but for the defendant’s wrongful act.

21        The other important principle, for the purposes of this case, as a principle applicable in dealing with questions of proximate cause, is the principle that a new intervening act, occurring after the defendant’s wrongful act, may given such a pronounced new impetus or deflection to the chain of causation that the original wrongful act of the defendant is no longer regarded as a sufficient cause upon which to rest legal liability.  That principle is sometimes referred to as involving the occurrence of a novus actus interveniens.

22        The application of the principle relating to intervening acts involves the difficult task of finding the facts correctly on the basis of the evidence.  It also requires a very nice judgment in balancing the causes of the psychological symptoms in order to decide whether the causes arising from the plaintiff’s own pre-existing subjective state and the plaintiff’s own individual conduct as well as from other sources such as the advice and actions of family, friends and healers, have had an independent new impetus or deflection on the existing chain of causation flowing through the defendant’s wrongful act, to such an extent that the defendant’s wrongful act must be regarded as a cause-in-fact for which no legal recovery is permitted.  At that point, the defendant’s wrongful act would no longer be sufficient “proximate cause” in law.  An example of a case where the cause-in-fact test was met, but the proximate cause test was not met because the plaintiff’s psychological symptoms were brought about by his own new acts after the accident and by his grief, so that the chain of causation was given a new impetus and deflection by his own acts which therefore constituted an intervening causative force, is to be found in Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1 (C.A.).

23        I propose to make three further observations before leaving this discussion of the principles governing the awarding of damages for psychological symptoms experienced by the victim of a tortious act. 

24        My first observation is that I think it is correct to treat a plaintiff’s own conscious wish to receive care, comfort and attention, or the plaintiff’s own conscious failure to exercise his or her willpower to bring about a healing of the symptoms, as coming within the principle of new intervening acts, and to treat those occurrences as giving such a sufficient new impetus or deflection to the chain of causation as to render the original wrongful act no longer a proximate cause.  But if the plaintiff’s wish to receive care, comfort and attention is accepted as being entirely unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, or if the plaintiff’s own failure to exercise his or her own willpower is unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, then I would not be prepared to say that the plaintiff is still excluded from compensation for the psychological symptoms.  In short, I think that the word “conscious” is implicit in points 3, 4, 5, and 6 that I have extracted from Mr. Justice Taylor’s reasons in Maslen.

25        My second observation arises from the concurring reasons of Madam Justice Wilson, sitting in the Ontario Court of Appeal, in Cotic v. Gray.  Madam Justice Wilson said, first, that the foreseeability test for remoteness of damage and the thin skull principle cannot co-exist in relation to psychological symptoms either directly brought about by the accident or triggered by the accident on the foundation of a predisposition to suffer such symptoms.

26        Madam Justice Wilson emphasized, second, that in a thin skull case, that is, a case of pre-existing vulnerability, the occurrence of the psychological symptoms should not, without more, be regarded as arising from a new sufficient cause in the nature of a novus actus interveniens.  Madam Justice Wilson said this, at p. 180:

In my opinion, it is inappropriate in a thin skull case to view the peculiar vulnerability of the victim as causative in law.  Undoubtedly as a factual matter the deceased’s psychiatric condition played a role in his subsequent suicide but the law would be taking away with one hand what it had given with the other if it were to permit the victim’s peculiar vulnerability to break the causal chain, or constitute a novus actus interveniens or, worse still, be treated as the effective cause of his damage.  I do not think it was open to the jury to view the motor vehicle accident and the deceased’s psychiatric condition as separate or concurring “causes” and to choose between them which was the “effective cause” of the death.  Given the deceased’s pre-existing mental frailty, the medical evidence referred to by my learned colleague established beyond peradventure that the accident and its effect upon Mr. Cotic drove him to his death.

27        I agree with those conclusions of Madam Justice Wilson.

28        My third observation is that there are many cases in which the assessment of damages depends upon an examination of this difficult area.  As Mr. Justice Taylor said inMaslen v. Rubenstein, we were referred to more than fifty authorities in argument in that case.  However, I wish to make a brief comment in relation to only British Columbia trial decisions.

29        Buteikis v. Adams (1994), 90 B.C.L.R. (2d) 213 (S.C.), is under appeal to this Court.  My comment is that I do not propose to say anything whatsoever about that case.

30        In Landry v. Cadeau (24 June, 1985), Vancouver B830850 (B.C.S.C.), it is suggested in obiter dicta that weakness of willpower should not enable a plaintiff to recover damages for psychological symptoms that cannot be healed by the weak will of the plaintiff, if a strong-willed person could have healed the same symptoms in the same circumstances.  To the extent that that suggestion is contrary to the application of the egg shell personality principle, I would not follow it.

31        In Smith v. Wensley (15 January, 1988), Victoria 85/0178 (B.C.S.C.), Mr. Justice Taylor said this, at p. 6:

It seems to me that if a person is reduced by an injury to a psychological state, so that continued pain is involuntarily experienced thereafter even though there is no physical basis for it, that pain might logically be attributed to psychological problems brought about by the accident, and the continued sensation of pain could properly be regarded in such a case as something caused by the accident.  But where depression or some other psychological condition leading the victim to experience revival or continuation of pain has not been shown to have been caused by the accident to which the pain is attributed, it cannot be said, for the purposes of the law, that a causal connection exists between the injury and the continued pain.  The only connection between them is that which exists in the mind of the sufferer – the injury is merely the subject on which the victim’s mind has happened to focus or “fixate” – and that is not, of course, sufficient to establish a connection in law between the injury and the continuing complaint.

32        It seems to me that there are two different types of psychological symptoms that may be covered by the principles that are here being discussed.  There are those where the psychological symptoms have their origin entirely in the defendant’s wrongful act.  Clearly they are compensable.  And there are those psychological symptoms where the defendant’s wrongful act triggers a pre-existing psychological condition so that both the defendant’s wrongful act and the pre-existing condition are causes-in-fact of the psychological injury.  In the latter cases the psychological injury will be compensable on the basis of a pre-existing thin skull, except only in cases where the psychological problem is so dominant as a pre-existing condition and the injuries sustained in the accident are so trivial that the accident can no longer be said to be sufficient cause in law to support an award of damages on the basis of proximate cause.

33        I have difficulty accepting that there will be any cases in which it could be said that damages should be refused on the basis that the injury suffered in the accident was merely the subject on which the victim’s mind has happened to focus or fixate, when it cannot also be said that if the accident had not happened something else would have provided the trigger for the focussing or fixating so that the psychological symptoms would have occurred in any event and the cause-in-fact test would not have been met.

34        It is noteworthy that though Smith v. Wensley was referred to in argument in Maslen v. Rubenstein, Mr. Justice Taylor did not return again to the notion that damages would not be awarded if the accident injuries were merely something on which the plaintiff focussed or fixated.  I think that if the focussing or fixating has its real origin in the accident, or if the focussing or fixating has its real origin in a pre-existing tendency to focus or fixate in that way, then the psychological symptoms arising from the focussing or fixating would be compensable unless the focussing or fixating would have occurred in any event, but would have chosen a different subject matter on which to crystallize, even if the accident had not occurred.

This case, and cases like it, are worth reviewing for anyone advancing an ICBC injury claim who was more prone to injury than the average person by virtue of their pre-existing physical make-up.

Can I Fire My ICBC Claims Lawyer?

Written by admin on . Posted in Uncategorized. 53 Comments on Can I Fire My ICBC Claims Lawyer?


If you hired a lawyer to advance your ICBC tort claim on a contingency basis and are unsatisfied with the representation you are receiving, can you fire your lawyer?  The short answer is yes.
You are the client, you are in charge.   If you don’t like how your lawyer is handling your case you can send him/her packing.  HOWEVER, it will probably cost you money to do so.
Over the years I’ve been approached by numerous people indicating they wish to fire their current lawyer. My advice is almost always the same so I thought I would share it on this blog post.  Try to work things out with your lawyer.  Hiring a new lawyer means paying a new lawyer.  You want to avoid getting stuck with 2 legal bills for 1 Personal Injury claim if you can avoid it.  Often times the problems that strain the lawyer-client relationship are fixable.  Sit down with your lawyer, communicate your concerns and see if you can work out a solution.  If you can’t work things out then you can of course move on.  You need confidence in your lawyer to work towards a fair settlement of your ICBC claim.
If you want to fire your lawyer the first thing you should do is check your fee agreement.  A well written fee agreement will deal with how you can end your relationship with your lawyer and the consequences.  Often times a contingency fee lawyer will finance disbursements (expenses) involved in advancing an ICBC claim.  If you get a new lawyer you (or your new lawyer) will need to pay these expenses in order to get the file.
Arrangements will also have to be made to secure your former lawyer’s fees.   Often times the fee agreement will permit the lawyer to charge you an hourly rate for the work done prior to termination.  Other times the lawyer will be able to look at the final settlement amount and charge a fee based on how much his/her efforts contributed to the final settlement.  Typically a fired lawyer in these circumstances is prepared to wait until the case is settled to collect their fees but the disbursements usually need to be paid right away.
If you don’t think the lawyer is charging a fair fee for services you can have the lawyer’s account reviewed by a registrar of the Supreme Court.
If you don’t like your lawyer the  Bottom Line is this – Try to work things out, if you can’t, review your fee agreement and determine what your financial obligations to your lawyer will be.  From there get a lawyer that you trust and respect, if you don’t have confidence in your lawyer you will have a tough time working towards a fair settlement of your ICBC injury claim.

ICBC Claims and Treating Physicians

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

In reasons for judgement released today Mr. Justice Holmes awarded an injured Plaintiff a total of $8,500 in damages as a result of injuries sustained in a 2005 BC car accident that occurred in 100 Mile House.
The Plaintiff was a passenger at the time.  His wife was driving.  The vehicle left the roadway and rolled onto its roof.  Liability for the accident was admitted by ICBC but the issue of damages was contested.
The Plaintiff led medical evidence that he suffered from ‘mechanical lower back pain’ amongst other injuries as a result of this crash.  He advanced a ‘significant claim of loss of earning capacity’.
The cause of the Plaintiff’s back pain was at issue at trial.  The court largely rejected the Plaintiff’s claim and found that the Plaintiff had pre-existing back pain which was exacerbated as a result of the collision.   The court found that the Plaintiff’s exacerbation ‘either resolved or significantly diminished within a few months of the accident.  The Plaintiff’s more serious complaints of back pain and spasm did not occur until months later…‘ 
The court summarized its findings at paragraph 48 as follows:
[48]            I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005.  That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident.  He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility.  Treatment was by continuing chiropractic and exercise.  He was able to perform his work and operate his business with minimal interference.  I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.
The Plaintiff did not call his treating chiropractor and his family physician to give evidence.  The court was critical of this and it appears that this was a main factor which fueled the court’s decision.  The court highlighted this fact as follows:

[37]            I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38]            Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action.  Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39]            I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005.  I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

If you are advancing and ICBC claim and have pre-existing injuries it is a good idea to consider calling your treating doctor to give evidence to explain your pre and post accident status to the court.  Failing to do so may result in an ‘adverse inference’ where the court may conclude that your treating doctor would have given evidence damaging to your case.

Court of Appeal Orders Re-Trial for Contributory Negligence in Bicycle Accident Case

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released by the BC Court of Appeal today ordering a new trial to deal with the issue of ‘contributory negligence’ of the Plaintiff.
The Plaintiff was an experienced tri-athlete and bicyclist.  He was
catastrophically injured in an accident on a steep and winding road in Langley on the morning of June 29, 2002.  Proceeding on his triathlon-model bicycle downhill towards a blind curve, he veered to the right to avoid a “cube” van coming over the centre line, lost control of his bicycle, travelled through a gap between two barriers at the side of the road, and fell down a ravine.  His spinal cord was injured at the C6-7 level, with the result that he has almost no sensation and almost no use of his body from his chest down and suffers chronic neuropathic pain.  He does have use of his arms and of his diaphragm muscles.  He has also been diagnosed with a mild traumatic brain injury.  He was 50 years old at the time of the accident.
Following a 33 day trial the BC Supreme Court found the Defendants liable in negligence and awarded close to $4.5 million for the Plaintiff’s severe injuries and damages.  The trial judge found that the Plaintiff was not contributorily negligent (that is that the Plaintiff was not even partially to blame for the accident).
The Defendants appealed on several grounds.  Their appeal succeeded on the issue of contributory negligence.  The BC Court of Appeal ordered that this issue be retried.  The court’s key finding of error at the trial level is set out at paragraphs 25-26 which I set out below:

[25]            The question that the trial judge was required to address was whether in all the circumstances Mr. Aberdeen was taking reasonable care for his own safety as a bicyclist, going down a hill he knew to be “nasty” and approaching a blind corner.  Did he use a wrong technique?  Was he going too fast?  Given that he was clearly exceeding the “advisory” speed for cars, was he creating an unreasonable risk of harm to himself as he rounded the curve?  Was he driving too closely to the centre line?  Should he not, if riding in a reasonably prudent manner, have been able to move to the right side of his lane, as Mr. McGee did, without losing control and going over the shoulder and off the road?  The trial judge did not answer these questions but, with respect, was content to base his conclusion of no negligence largely on the finding that Mr. Aberdeen could not have received a ticket.  As for the fact that the plaintiff and Mr. McGee had conversed, just before the accident, about the steepness of the hill, that could take one only so far.  As Lambert J.A. suggested in MacDonald v. Shorter [1991] B.C.J. No. 3714, 8 B.C.A.C. 179, it seems likely that “in the bulk of cases where negligence occurs, the negligent conduct is an exception to the general conduct of the person who is said to be negligent.”  (At para. 13.)

[26]            In these circumstances, I am reluctantly driven to the conclusion that the trial judge erred in failing to consider specifically whether Mr. Aberdeen had been taking reasonable care for his own safety.  (In addition, there was more than a “paucity” of evidence on the topic of speed, contrary to the trial judge’s finding.)  I would remit the issue of contributory negligence for retrial below

This case is worth reviewing for anyone involved in an ICBC tort claim involving a cyclist to see the types of factors BC courts look at when deciding whether a cyclist is partially responsible for an accident. 

ICBC, Tort Claims and Admitting the Issue of Fault

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

Reasons for judgement were released today dismissing a claim where a Plaintiff sued ICBC alleging that ICBC infringed on her right to ‘freedom of thought, belief, opinion and expression” as guaranteed by the Canadian Charter of Rights and Freedoms.
This is a somewhat unusual judgement.  The Plaintiff was involved in a car accident in 2003.  She was apparently ticketed for her driving and ‘she felt alright with accepting total fault for the accident, because her car was in the pathway (of the other vehicle) when his car collided with hers.’
The other driver made a tort claim against the Plaintiff thereby triggering her policy of insurance with ICBC.  ICBC appointed a lawyer and defended the claim.  Ultimately the claim settled and the Plaintiff was indemnified for the damages she had to pay to settle the other motorists tort claim.
In the lawsuit ICBC denied that their insured was at fault.  ICBC often does this even if the Defendant is likely at fault for an accident.  The Plaintiff appeared displeased with this decision.  Some friction arose between the Plaintiff and her insurer ICBC.   This friction surrounded meetings between the Plaintiff and her ICBC appointed lawyer in preparing her for her evidence at an examination for discovery.    The Plaintiff was apparently concerned that her lawyer was ‘trying to influence her version of how the motor vehicle accident occurred‘.’  Ultimately ICBC sent the Plaintiff a letter informing her that ‘there is some indication that (the Plaintiff) did not meet a condition of your insurance contract‘.  The condition referenced in the letter was apparently the condition of an insured to co-operate with ICBC as required by s. 73 of the Insurance Vehicle Regulation.
This letter triggered the above lawsuit whereby the Plaintiff alleged ICBC infringed her Charter rigths.  ICBC applied to dismiss the claim arguing that the lawsuit contained no bona fide triable issue.  Mr.  Justice Halfyard agreed with ICBC and dismissed the claim.  In doing so he found that “I think it is arguable that the statement of claim could be amended so as to allege a cause of action for conspiracy to suborn perjury…In my opinion, no useful purpose would be served in allowing the Plaintiff to amend the statement of claim.  It is my opinion that most of the possible causes of action fail to disclose any reasonable claim, and those that might be amended so as to allege causes of action for intimidation and conspiracy to suborn perjury are bound to fail‘.
This case, while a little off the beaten path, goes to show that ICBC (in the course of defending one of their insured in a tort claim) has the right to decide whether the issue of fault for an accident will be admitted.  As Mr. Justice Halfyard notes, 
 It was counsel’s duty to assess Ms. Joe’s statement of how the accident occurred, and to then advise I.C.B.C. as to whether or not liability should be admitted.  Under the regulations, I.C.B.C. had the exclusive authority to decide whether liability would be admitted, in whole or in part, on behalf of Ms. Joe.  Many cases occur in which I.C.B.C admits 100% liability on behalf of insured drivers who deny they were at fault for the accident.  In the present case, there was nothing improper in defence counsel and I.C.B.C. taking the initial position that Mr. Knight was partly at fault for the accident.  Mr. Knight had apparently admitted he was not wearing a seat belt.  That position was also justified by Ms. Joe’s description of her actions, even accepting the statement she claims to have consistently given.  But counsel would understandably want to pin down the version of events that she would be giving on discovery, in the circumstances of this case.  That could never amount to an attempt to make Ms. Joe deny that she was at fault.  It was for counsel to predict what degree of fault should be attributed to her, based on her own statement and the other circumstances surrounding the accident.
If you feel you are at fault for an accident the best thing you can do is let ICBC know this in no uncertain terms.  If any indication is given that ‘an insured’ is not at fault for an accident ICBC will likely put the issue of fault into play in any subsequent tort claim.