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Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Dizziness Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, Uncategorized. 59 Comments on Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)

General damages – non-pecuniary

$200,000.00

(ii)

Past loss of income

$171,250.00

(iii)

Future loss of income earning capacity

$400,000.00

(iv)

Loss of opportunity

$10,000.00

(v)

Special damages

$26,955.75

(vi)

Costs of future care

$77,449.00

(vii)

Management and Tax Gross up

(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

$40,000 Pain and Suffering for Neck, Back and Shoulder Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $90,000 in damages as a result of a 2005 collision.
The Plaintiff was 25 at the time of the BC car crash.  He was not at fault for the crash and the trial focussed exclusively on the issue of damages.
The court heard from a variety of experts.  The court also viewed surveillance footage of the Plaintiff playing hockey and doing other physical activities.  Such surveillance footage often comes to light at the trial of ICBC claims, particularly those inovlving on-going soft tissue injuries.
In awarding $40,000 for non-pecuniary damages (pain and suffering) the court made the following findings:

[15] I am persuaded by the evidence to conclude on the balance of probabilities that (the Plaintiff) suffered a flexion extension injury to the soft tissues of his neck, back and shoulder.  Considering the persistent difficulty that he has had with his lower back, the injury is fairly described as moderate in nature.  (the Plaintiff) had back trouble related to his rugby injury and on occasion his extremely heavy work load prior to his injury for which he sought treatment, but I accept his evidence that his previous back problems were intermittent and less severe before the accident.  (the Plaintiff) had already given up rugby and snowboarding prior to his injury.  His ability to play in-line hockey demonstrates that he does not have a functional disability, his problem is that demanding activities can cause the onset of significant pain.

[16] I accept Dr. Travlos’ opinion that:

He will likely still experience intermittent pain flare ups, but should be capable of reasonable physical activity.  He will learn to avoid certain recreational activities and certain types of work activities in order to manage his pains and by doing so should have reasonable pain control.

As I have noted earlier, (the Plaintiff) had pain in his back prior to the collision and would have had it in the future if the collision had not occurred, but his motor vehicle injuries have increased his susceptibility to back pain and made that back pain worse when it occurs.  I assess (the Plaintiff’s) claim for general damages for pain and suffering which has been and will be caused by his motor vehicle injuries above and beyond that which he would have had had he not been so injured at $40,000.

$45,000 Pain and Suffering for Aggravation of Degenerative Changes

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $45,000 Pain and Suffering for Aggravation of Degenerative Changes

Reasons for judgement were released today awarding a Plaintiff just over $100,000 as a result of a 2006 collision which occurred in Vernon, BC.
The Plaintiff was hit from behind when stopped for a red light.  The issue of fault was admitted.  The accident resulted in minimal vehicle damage.  In many ICBC claims defence lawyers try to get the Judge/Jury to focus on the lack of vehicle damage as opposed to the medical evidence.  Here the Court noted that “Although the lack of vehicle damage may be a relevant consideration in considering (the Plaintiff’s) injuries,k it has to be balanced against the evidence of the Plaintiff and the medical evidence.”
The court heard from various medical experts including the Plaintiff’s doctor and 2 physiatrists (physicians specializing in rehabilitation).
The court accepted that the Plaintiff suffered a Whiplash Associated Disorder, cervicogenic headaches, and an onset of pain in previously asymptomatic degenerative changes in her neck.  The court further accepted that these injuries will linger for some time but should continue to improve in the coming years.
The court assessed damages as follows:

Non-pecuniary Damages:

$45,000.00

Special Damages:

$2,172.30

Past Loss of Earnings/Opportunity to Earn:

$2,500.00

Loss of Future Earning Capacity:

$25,000.00

Cost of Future Care:

$30,000.00

Loss of Past and Future Housekeeping Capacity:

Nil

TOTAL:

$104,672.30


ICBC Claims and Lawyer Fees

Written by admin on . Posted in Uncategorized. 119 Comments on ICBC Claims and Lawyer Fees

Reasons for judgement were released today by the BC Court of Appeal reducing a lawyer’s fee for services performed on a contingency basis.
The facts of the case are tragic.  The Plaintiff was catastrophically injured when she was 19 months old in a single vehicle roll over accident in 1993.
A claim was started against the driver of the vehicle.  Eventually a new lawyer took over the file and acted for the Plaintiff for over 10 years and had to spend over $10,000 of her own money to move the prosecution of the claim along.
The claim eventually settled for the ICBC insurance policy limits.  Although the fee agreement permitted the lawyer to charge 33.3% of the settlement the lawyer reduced the fee to 20%.
In these circumstances the fees needed the approval of the Supreme Court and in 2007 the fees were approved.  The Office of the Public Guardian and Trustee appeled the approval claiming the fees were excessive in the circumstances.
Interestingly, the guardian of the child took no issue with the legal fees and did not oppose the approved fee of 20%.  In other words, the client appeared to be happy with the services performed and the fees charged but the government was not.
The BC Court of Appeal reduced the lawyers fee to about 12% of the amount recovered.  In doing so the court summarized some of the factors that are considered when approving contingency fee agreements, specifically:

1.         the financial circumstances of the plaintiff;

2.         the risk to the law firm where it carries disbursements;

3.         the complexity of the issues;

4.         the experience and skill of defendant’s counsel;

5.         the experience and skill of plaintiff’s counsel;

6.         the risk assumed by plaintiff’s counsel that there would be no pay for effort expended;

7.         the time expended by plaintiff’s counsel;

8.         the importance of the case to the plaintiff; and,

9.         whether the settlement is a good settlement.

The court then went on to adopt some generally accepted propositions regarding contingency fee agreements in British Columbia:

[22] He said, in commenting in general on contingency fee remuneration at p. 269:

A solicitor who undertakes the prosecution of a difficult case, the prospects of which are uncertain due to various issues such as liability, causation or damages, is entitled to be well compensated in the event the case is brought to a successful conclusion.  Such remuneration must be substantial, but not exorbitant, in order to make up for those cases taken by the solicitor on a contingency fee basis which do not result in success.

[23] In Usipuik v. Jensen, Mitchell & Co. (1986), 3 B.C.L.R. 283, [1986] 5 W.W.R. 41 (S.C.), Madam Justice Southin observed (at p. 297):

In approaching the question of the fairness of any particular contract for fees on a percentage basis, one must remember that there are many kinds of personal injury cases: motor vehicle accidents, medical and other professional malpractice, products’ liability, occupiers’ liability and no doubt other kinds which do not, at the moment, occur to me. Medical malpractice cases are notoriously difficult and expensive to pursue. Expert witness fees in themselves can run to many thousands of dollars.

But actions for negligence in the operation of a motor vehicle may or may not be risky or difficult. Sometimes there is an issue of liability; frequently there is not. Sometimes there is a real difference of opinion on the proper amount of damages between the plaintiff and the Insurance Corporation of British Columbia; sometimes, there is very little.

Do you have questions about this case or lawyers fees and ICBC claims?  Feel free to contact me.

$30,000 Pain and Suffering for 2 year 'mild to moderate' Soft Tissue Neck Injury

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff compensation as a result of a 2002 motor vehicle collision.
The collision happened in Victoria.  It was a rear end crash and the Defendant admitted fault.  This appears to be a crash that fit into ICBC’s Low Velocity Impact (LVI) criteria as the vehicles suffered minimal damage.
The Plaintiff claimed significant injury which was on-going more than 5 years post collision which would impact her future earning capacity.  The defence position was that that crash caused a mild soft tissue injury which resolved by October 2003.
The court found that the crashed caused a 2 year soft tissue injury and made the following findings:
[26] I have some difficult in assessing (the Plaintiff’s) evidence.  She describes the resulting dent in her car as huge, yet it does not look like that in the pictures and the cost to repair was estimated at only $53.  She said she was in incredible pain immediately after the accident, yet Ms. Lobb spoke to her and was under the impression everyone was fine.  No ambulance was called, nor did she seek immediate medical attention which I would expect would happen if the pain was immediately “incredible” and “excruciating”.  On the other hand, I have no doubt that (the Plaintiff) suffered pain caused by the accident which, as documented by the medical reports, gradually got worse over the ensuing weeks.  I also have no doubt that (the Plaintiff) continues to have pain to this day – it seems to me on looking at her that it is written in her face.  As Dr. Vincent testified, people do not go for injection therapy unless they have pain.  Furthermore, there is evidence from her mother, her friend and her employers that she is not the high energy person she once was.  The difficulty is to assess the degree to which the collision is the cause of her pain and the true effect of that upon her life.  There is a tendency to attribute a multitude of difficulties following a car accident to that one cause when often there are many…….

[31] (the Plaintiff) bears the onus of proving that the condition for which she seeks compensation was on the balance of probabilities caused by the December 30th, 2002 collision. I  find on the evidence that she did suffer a mild to moderate soft tissue injury to her neck and back as initially diagnosed in her early months of treatment by Dr. Down which was caused by the collision.  I am not persuaded, however, on the balance of probabilities, that her condition caused by the accident injuries extended beyond the two year period initially foreseen by Dr. Down.  She was clearly on a course of recovery in that two year period.  What happened thereafter has not been proven to have been caused by the December 30th, 2002 collision.

[32] I assess (the Plaintiff’s) general damages for a mild to moderate soft tissue injury to her neck and back extending over a period of two years at $30,000.

Supreme Court of BC and Trial Costs

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 103 Comments on Supreme Court of BC and Trial Costs

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.
The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.
When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.
When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.
Rule 57(10) of the BC Supreme Court rules states that
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?
Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

Why Can ICBC Claims Take a Long Time to Settle?

Written by admin on . Posted in Uncategorized. 59 Comments on Why Can ICBC Claims Take a Long Time to Settle?

1. The medical system is slow
2. The Court system is slow
Personal injury cases depend on both the medical system and the court system. When you add these 2 systems together it is easy to see why it can take a very long time to fairly settle an ICBC injury claim.
In cases of minor injuries that quickly heal there is no reason for the settlement of the ICBC tort claim to take a long time. Once the injuries fully heal your losses can be valued, out of pocket expenses can be added up and a fair range for pain and suffering can be negotiated.
In cases of serious injury it is not that simple. Serious injuries can take a long time to heal. Sometimes they don’t fully heal, instead they plateau at what’s known as a point of ‘maximum medical improvement’. In cases of serious injury it is imprortant to learn what their long term consequences will be prior to settling with ICBC. The following are some of the questions that should be answered prior to settling:
1. Will the injuries fully heal?
2. If so, when will they fully heal?
3. If not, when will they reach the point of maximum medical improvement?
4. Will the injuries get worse with time? (such as the on-set of post-traumatic arthritis)
5. What effect will the injuries have in the long term on one’s ability to work?
6. What future care needs will be necessary to compensate for the long term injuries?
It is very difficult to fairly value an ICBC injury claim involving serious injuries if the answers to the above questions are not known. These questions often can’t be answered quickly. The medical system is slow. It can take a long time to get properly investigated (wait lists for specialists, who then order tests, wait lists for tests, wait lists to see the specialist again….)
Once the full long term impact of injuries is known they can be valued. Settling prematurely can be financially devastating if the long term reality of injuries is worse than anticipated at the time of settlement.  As a personal injury lawyer I often find myself speaking with people who settled their cases prematurely for amounts that significantly short change their injuries. It is only in rare circumstances that such settlements can be set aside.
Keep limitation periods in mind and know that time is on your side when it comes to settling an ICBC injury claim. The desire for quick settlement should never over-ride the desire for a fair settlement.

How Saving a Few Hundred Bucks Could Cost You a Few Hundred Thousand

Written by admin on . Posted in Uncategorized. 60 Comments on How Saving a Few Hundred Bucks Could Cost You a Few Hundred Thousand

When you purchase a contract of insurance with ICBC they want to know who the principal operator is going to be. The insurance premiums may vary based on the person’s driving record. It is unfortunately all too common of a problem for people to misrepresent who the principal operator of their vehicle is when insuring the vehicle with ICBC. Doing so is a breach of section 75 of the Insurance (Vehicle) Act which reads as follows:

75 All claims by or in respect of the applicant or insured are invalid and the right of an applicant, an insured, or a person claiming through or on behalf of an applicant or insured or of a person claiming as a dependant of the applicant or the insured, to insurance money under the plan or an optional insurance contract, is forfeited if

(a) the applicant for coverage under the plan or the optional insurance contract

(i)  to the prejudice of the insurer, falsely describes the vehicle in respect of which the application is made, or

(ii)  knowingly misrepresents or fails to disclose in the application a fact required to be stated in it,

(b) the insured violates a term or condition of or commits a fraud in relation to the plan or the optional insurance contract, or

(c) the insured makes a wilfully false statement with respect to the claim.

I have unfortunately seen too many examples of people getting into trouble for misrepresenting the principal operator to ICBC. Parents say they are the principal operator when really their kids are or friends claiming they are the principal operator when really their buddy with a few too many speeding tickets is. All this to save a few hundred bucks. This ‘misrepresentation’ can lead to a loss of coverage. This loss of coverage could result in hundreds of thousands of dollars of debt not only to the driver but to the registered owner who claimed they were the principal operator.
The following are a few examples of the potential consequences of breaching a policy of insurance by lying about who the principal operator is:
a. If your car gets stolen ICBC would not have to pay you for this
b. If you are injured in a car crash that is not your fault ICBC will not have to pay you your ‘no-fault’ benefits
c. If you are at fault for a crash and injure someone else ICBC will not indemnify you for the losses you caused. Imagine that you are at fault for a crash that results in serious injury to another motorist. Imagine that the other motorists ICBC injury claim is worth $300,000. You could be on the hook personally for the value of that claim!
The consequences of breaching your ICBC insurance policy far outweigh the benefits of saving a friend or family member a few hundred bucks on their insurance premiums. Being in breach of insurance can have life-long financial consequences on motorists and I have seen these first hand. If you know of anyone who is trying to save a few bucks by misrepresenting who the principal operator of their vehicle is, do them a huge favour. Tell them the consequences before it is too late.

BC Court of Appeal: Previous Settlements to be Deducted from Indivisible Injury Awards

Written by admin on . Posted in Civil Procedure.

Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
In this case the Plaintiff was injured in 2 separate car accidents. She was not at fault for either. The injuries in both were found to be ‘indivisible’ meaning that the injuries were ’caused or materially contributed to’ by both events.
The Plaintiff claimed damages for both crashes. She settled one claim for $315,000. She succeeded in her lawsuit against the other driver and had her injuries valued at about $400,000. The trial judge then went on to order that the settlement proceeds from the second accident ($315,000) must be subtracted from the $400,000 awarded at trial. This was so because the injury was ‘indivisible’.
Today the BC Court of Appeal upheld this approach. In particular the court made (or confirmed) several important findings:
If two torts were necessary causes of the injuries, liability for the loss resulting from those injuries may be apportioned based on fault, but each tortfeasor is responsible for the entire damage to which their tort materially contributed beyond the de minimus range ( I would imagine this does not hold true, however, in cases of contributory negligence)
Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
A “divisible injury” is one that has ‘no causal connection’ to a certain tort
An ‘indivisble injury’ is one that was ’caused or materially contributed to by a tort’
“concurrent torts” occur when their negligence combine to cause one injury and its consequential loss at the same time
“consecutive torts” occur when injury occurs from 2 torts which occurred at different times.
There is no valid policy reason to treat concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.
When dealing with ‘consecutive torts’ causing an ‘ indivisible injury’ the two causes of action are not separate: they are linked by the indivisible injury. That link brings into play not only joint and several liability but also the rule against double recovery.
The bottom line is that if you sue for an ‘indivisible injury’ and have already been partially or wholly compensated by one ‘tortfeasor’ for that injury, a subsequent tortfeasor can subtract the compensation amount from what he/she has to pay.

More on ICBC and "Independent Medical Examinations"

Written by admin on . Posted in Civil Procedure. 66 Comments on More on ICBC and "Independent Medical Examinations"

When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.
This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:
Rule 30 — Physical Examination and Inspection

Order for medical examination

(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

Subsequent examinations

(2) The court may order a further examination under this rule.

Questions by examiner

(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.

Entry upon land or buildings

(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

Application to persons outside British Columbia

(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.

On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.
What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.
Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:

      • *
        The court’s discretion must be exercised judicially on the basis of the evidence;
      • *
        A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
      • *
        A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
      • *
        A passage of time alone is not a sufficient reason to order a second examination;
      • *
        Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
      • *
        Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.

The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties in their preparation for trial: Wildemann v. Webster.

Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v. Passmore.

In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.

When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.

When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.