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Injury Claim Succeeds Despite 4 Year Gap in Treatment by "Germaphobe" Plaintiff

Written by admin on . Posted in ICBC Headache Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.
In the recent case (Moody v. Hejdanek) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash was significant resulting in the Plaintiff’s vehicle being written off and the Defendant’s vehicle sustained over $17,000 in damage.  THe Plaintiff sought medical attention shortly after the crash but by March of 2013 stopped treatment and did not see a doctor again until 2017 for medico-legal purposes.
Despite this gap the Court accepted the Plaintiff suffered a compensable level of lingering injury and assessed non-pecuniary damages at $55,000.  In reaching this quantum Mr. Justice Steeves provided the following reasons:
[51]         The plaintiff testified that immediately after the accident he felt pain in the middle of his back and in his shoulders. This continued into the evening and night. He did not return to work on the day of the accident and he told Dr. Robinson that he was off work for a “couple of days.” He attended at a walk-in clinic on January 15 and January 23, 2013. He was prescribed pain medication but he told Dr. Robinson that he doubted that he took it. He had four massage treatments in March 2013. Dr. Winston stated that there were no references to headaches in the record he saw from the walk-in clinic or massage therapist…

[54]         Nonetheless, the fact that there are no records of medical assessment or treatment of the plaintiff for his injuries from the March 2013 accident until he obtained expert evidence for his trial is significant. He saw Dr. Robinson, an expert in neurology and headaches, in May 2017 and Dr. Stewart, a specialist in physical medicine and rehabilitation medicine, in September 2017. He also saw Dr. Winston in October 2017. Typically, in this type of litigation, there is information, sometimes extensive information and chart entries, from a plaintiff’s family physician. In the subject case, this evidence is absent.

[55]         This situation creates a number of complications for the plaintiff. First, it requires the doctors that he saw in 2017 to make judgments about the medical consequences of the 2013 accident with limited medical information about his history. The primary, or only, source of information available to the doctors for the 2013 to 2017 period is the account of the plaintiff four years after the fact. For example, Dr. Robinson stated in his May 2017 report that “[e]ver since the accident [the plaintiff] has had headache, neck, shoulder and upper back pain.” The only way that this could be known is from what the plaintiff told Dr. Robinson. This is not so much a credibility issue as a problem establishing continuity of medical history.

[56]         I conclude that the absence of contemporaneous medical information about the plaintiff between 2013 and 2017 raises an issue of the weight that is to be given to the plaintiff’s expert evidence.

[57]         A further conclusion that can reasonably be drawn from the absence of medical information between 2013 and 2017 is that there were minimal injuries caused by that accident. Accepting that the plaintiff talked to his golf clients who had medical training, his own evidence is that none of them suggested making an appointment for an examination or treatment. It cannot be the case, as urged by the plaintiff, that conversations on the golf course with people with medical training is the same as seeing those people in their offices and undergoing an examination. Put another way, even on the evidence of the plaintiff, these medical professionals did not think it necessary for him to be examined in their office.

[58]         As partial explanation for this, the plaintiff says he has an aversion to doctors and he is a “germaphobe.” I accept the plaintiff’s evidence that he is uncomfortable seeing doctors but he has seen them for other reasons in the past (for example, an abscessed tooth). He also saw three specialists and underwent a functional evaluation for this litigation without any recorded problems. He apparently did not take pain medication prescribed when he attended at a walk-in clinic in January 2013 but he currently takes Advil for pain. I conclude that the plaintiff would have sought out further medical attention after March 2013 if the injuries he suffered from the 2013 accident had been serious enough, as any sensible person would do.

[59]         According to the defendant, the lack of medical attention at the time of the January 2013 accident means that the plaintiff did not take reasonable steps to mitigate his injuries. There is a logic to that submission but, as above, I conclude that the situation is one of weight to be given to the plaintiff’s expert evidence rather than of mitigation.

[60]         Turning more specifically to the expert evidence, Dr. Robinson has opined that the plaintiff’s history is “… consistent with a diagnosis of chronic posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the January 6, 2013 motor vehicle accident.” Similarly, Dr. Stewart reviewed the plaintiff’s history and stated in her report of September 6, 2017 that, “[b]ased on this history it is my opinion that he sustained soft tissue injury to his neck and back in the collision.”

[61]         For his part, Dr. Winston certainly disputes that the plaintiff has any ongoing impairment. However, he does not opine on the specific issue of causation. He notes the initial medical treatment at the walk-in clinic and he apparently had the chart from the physiotherapist available to him. The latter was two months after the accident, in March 2013, and there is no reference on the chart to headaches. He notes that the plaintiff “never sought medical attention again” after March 2013 and he does not believe there was impairment after that. Dr. Winston does not state it expressly, but I take his opinion to be that there was an accident and it did cause some mild soft-tissue injury. However, there was no impairment to speak off after March 2013.

[62]         From these opinions, I conclude that the plaintiff did suffer a soft-tissue injury to his neck from the January 2013 accident, as described by Dr. Robinson. I conclude that headaches are included in this assessment. As above, Dr. Winston’s opinion is broadly consistent with this at least on the initial causation issue (but he is very skeptical about any ongoing impairment). In her opinion, Dr. Stewart includes an injury to the back but in cross-examination, she agreed this was possible but not probable. It is also not the opinion of Dr. Robinson. I do accept the opinion of Dr. Robinson that “[c]hronic insomnia is probably a factor in the persistence and severity of his posttraumatic headaches”…

[73]         Overall, I conclude that non-pecuniary damages in the amount of $55,000 are appropriate in this case.

Plaintiff Ordered to Pay Double Costs After Failed Parking Lot Collision Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, ICBC LVI (Low Velocity Impact) Cases.

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.
In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.  The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”
Prior to trial ICBC made a formal settlement offer of $5,000.  ICBC asked for double costs.  The court agreed noting the offer ought to have been accepted.  In granting the request for double costs Mr. Justice Brown provided the following reasons:
[4]             The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.
..
[7]             I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.

$85,000 Non-Pecuniary Assessment For Chronic Wrist Injury

Written by admin on . Posted in ICBC Wrist Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a permanent wrist injury sustained in a vehicle collision.
In today’s case (Fatin v. Watson) the Plaintiff was involved in a 2014 collision.  The Defendant disputed fault but ultimately was found 75% to blame.
The Plaintiff suffered a variety of injuries the most serious of which affected his wrist and was expected to be permanent. In assessing non-pecuniary loss at $85,000 prior to apportionment of damages Mr. Justice Grauer provided the following reasons:

[28]         Dr. Fatin suffered a blow to his head and his left shoulder, but neither of these caused any lasting injury.  The significant injury was to his right wrist.  He suffered, and continues to suffer, from a condition called “SLAC wrist”.  SLAC is the medical short form for scapholunate advanced collapse, and comprises injury to the right scapholunate ligament leading to intercarpal and radialcarpal osteoarthritis.

[29]         This injury has had a marked effect on Dr. Fatin’s lifestyle.  Although retired from medicine for some years, he has been very active in carrying out extensive renovations and landscaping to the homes and recreational properties in which he and his family have lived, and was active in activities such as golf and bocce.  He can no longer lift a heavy item, wield a hammer, drive a screw, swing a golf club or put a backspin on a bocce ball.  He wears a brace on his right wrist to minimize the pain that comes with movement. 

[30]         The injury itself and the wrist osteoarthritis were not caused by the motor vehicle accident, but were pre-existing degenerative conditions that were asymptomatic.  It is not contested that the collision caused the osteoarthritis to become symptomatic, and that he will have a permanent disability in the form of pain, decreased wrist movement and decreased strength in the right upper limb. 

[31]         No one can say whether or when it would have eventually become symptomatic but for the accident.  His treating plastic surgeon, Dr. Slobodan Djurickovic, who has a special interest in hand and wrist surgery, wrote in his report:

It is impossible to know whether or not he would have had significant wrist pain had he not been involved in an accident.  It is my opinion that he likely would not have developed severe wrist pain.  He had significant arthritic changes and no pain into his 75th year and was able to golf etc.  As a result I feel he would have likely had only mildly painful wrist arthritis at the most if it weren’t for the motor vehicle accident.

[32]         I accept Dr. Djurickovic’s opinion.  It is consistent with the opinion of the defence orthopedic surgeon, Dr. Brenda Markland, who wrote in her report:

It is likely that Dr. Fatin would eventually have become aware of the osteoarthritis in his right wrist, but it is difficult to predict exactly when that would have happened.  After all, he made it to the age of 75 years without any symptoms, and might have lived out the rest of his life without knowing that the problem existed.  However, a fall on the outstretched hand or the strenuous activity involved in renovations might have brought out the symptoms earlier, or the progression of the degenerative changes over time might have given him gradually increasing pain.

[33]         Accordingly, I find that the motor vehicle collision caused Dr. Fatin’s pre-existing osteoarthritis to become symptomatic to the point where it became disabling, and that he would not have suffered that degree of disability but for the accident.

[34]         The only potential treatment is surgical: either a wrist fusion, which would likely relieve pain but completely limit movement, or a wrist joint replacement (arthroplasty), from which, according to Dr. Djurickovic, Dr. Fatin could expect a reasonable result, with reduction in pain, increased range of motion, and more comfort in activities of daily living, lighter duties and hobbies.  It is not clear that Dr. Fatin would be able to resume golf or undertake renovations, and he would be advised to continue wearing a splint for anything more than light activities.

[35]         Given Dr. Fatin’s age and physical demands, as well as the fact that he is right hand dominant, it is Dr. Djurickovic’s recommendation that he undergo the wrist replacement procedure.  Dr. Fatin is still considering his options…

[40]         Dr. Fatin is a man who took great satisfaction from his ability to carry out manual tasks at which he was very good.  These included, as I have noted, renovating his several houses, extensive maintenance, repair work, landscaping and gardening.  He engaged in these all his life, including in his retirement.  He has been considerably more active than many of his age.  All of this has been greatly impaired by his injury.  In addition, the leisure activities he has enjoyed in retirement have also been affected, particularly golf.  For him, the loss of independence that we all face as we age has been greatly accelerated.  Dr. Fatin has faced this stoically, but not without real frustration.

[41]         There is no doubt that his injury is permanent.  It is possible that wrist replacement surgery would improve things, but it would not cure the condition.  Dr. Fatin has expressed some reluctance to proceed with such surgery because of experience he has had from procedures in the past where he has suffered side effects usually limited to 1% or so of the population.  There nevertheless remains, I find, a real and substantial possibility that he will choose to undergo such a procedure, if for no reason other than to reduce pain and relieve frustration, and I assess the likelihood at 50%.

[42]         Taking all of these factors into account, I assess Dr. Fatin’s claim for non-pecuniary damages at $85,000. 

Court Dismisses "Low Velocity Impact" Collision Claims in Part Based on Forseeability

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissed claims for injuries from 5 separate collisions.
In today’s case (Greenway-Brown v. Kyung) the Plaintiff was involved in 5 separate collisions and alleged injury.  The Court dismissed two of the claims based on liability.  Of the remaining 3 the Court found that the Plaintiff did not meet her burden in proving injury.  Interestingly, the Court then went even further and noted that as a matter of law it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot.  This seems to contradict the reasoning from the BC Court of Appeal and numerous other so-called low velocity impact prosecutions.  In any event, Mr. Justice Macintosh provided the following reasons extending the Mustapha reasonsing to low velocity collisions:

[51]        Ms. Brown has not established the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude.  While the Court in Mustapha recognizes that a defendant must take a plaintiff as it finds him, or her, for purposes of damages, focusing on a person of ordinary fortitude, for the purposes of determining foreseeability, will not be confused with the “eggshell skull” situation, where, as a result of a breach of duty, the damage inflicted proves to be more serious than expected.

[52]        Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well.  Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis.  Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude.  In the three accidents, 2, 3, and 5, all of the available objective evidence, including the photographic evidence of the Jeep after several of the accidents, makes it wholly improbable that the Plaintiff suffered damages, or could suffer damages, from the three parking lot episodes.

[53]        The Plaintiff’s mental and physical conditions, of which she complains, pre-existed the second accident upon which she sues, and were exacerbated by her obesity and other physical conditions unrelated to the three accidents.  A defendant need not put a plaintiff in a position better than his or her position but for the defendant’s conduct.  See, Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34–36.  For Ms. Brown to receive damages from accidents 2, 3, and 5 would be to offend the principle expressed in Athey.

ICBC Ordered to Pay $250 for "Misguided" Refusal to Pay $15 Fee

Written by admin on . Posted in BC Supreme Court Costs Cases.

When people hire a lawyer in British Columbia a $15 ‘trust administration fee’ must be paid to the Law Society of BC.  Basically a mandatory tax.
When a plaintiff hires a lawyer to resolve a dispute with ICBC this fee needs to be paid.  If the Plaintiff is a successful litigant ICBC needs to indemnify this fee as a disbursement.  They don’t like to do so.  Today, reasons for judgement were published by the BC Supreme Court, Vancouver Registry, (Garayt v. Deneumoustier) with some harsh words for ICBC’s routine ‘misguided’ refusal to accept this disbursement.  In ordering the disbursement paid along with a $250 award in further costs Registrar Cameron provided the following reasons:

[6]            I agree with these submissions and would add that on numerous occasions on assessments that I have presided over I have advised counsel for the Insurance Corporation of British Columbia, who are retained to defend these motor vehicle related personal injury claims under our provincial automobile insurance program, that unless there is an issue as to whether or not the Plaintiff’s counsel has received a deposit into trust in respect of resolution of the litigation, there is absolutely no justification to put the trust administration fee into issue.

[7]            I have said to counsel, who come with instructions to oppose the TAF disbursement that those instructions are simply misguided and the matter ought not to be raised on an assessment unless there is an issue about the deposit being made. There is no such issue in this case.

[8]            I have jurisdiction pursuant to Supreme Court Rule 14-1(14) to award costs arising from an improper act or omission. The applicable Rule reads as follows:

Costs arising from improper act or omission

(14)   If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a)  that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

[9]            In this case the Plaintiff was put to unnecessary cost to address this objection to the TAF and I am satisfied that it is appropriate pursuant to Rule 14-1(14)(b) to allow an additional amount for costs in recognition of the failure of the Insurance Corporation of British Columbia to abide by the very clear case law not to make TAF an issue unless there is a proper basis for doing so.

[10]        Finding that there was no proper basis in this case and that the concession was only made this morning, I allow the Plaintiff an additional $250 in costs.

$80,000 Non-Pecuniary Assessment for Chronic and Disabling Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and partly disabling injuries caused in a collision.
In today’s case (Senger v. Graham) the Plaintiff was involved in a 2014 collision.  The Defendant accepted fault.  The crash caused chronic soft tissue injury which disabled the Plaintiff from her chosen profession as a dental hygienist.  In assessing non-pecuniary damages at $80,000 Madam Justice Murray provided the following reasons:

[43]        Taking into account all of the evidence I find the following:

               i.                  The injuries suffered in the accident have interfered with Ms. Senger’s schooling, work, household and recreational activities and will continue to do so;

              ii.                  She is limited in her capacity to work as a dental hygienist and will not be able to sustain a career in that field;

             iii.                  Ms. Senger will likely never be able to work full-time;

            iv.                  Her injuries will continue to plague her for the rest of her life. It is unlikely that she will ever be pain free;

              v.                  She has reached her maximum rehabilitation;

            vi.                  Ms. Senger will always require assistance with housekeeping and yard work; and

           vii.                  She will never be able to engage in many of the activities she previously enjoyed.

…

[49]        Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.

What Will ICBC's "Minor" Injury Caps Look Like?

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

As previously discussed, ICBC and the insurance lobby are on the cusp of persuading the BC Government to pass laws capping ‘minor’ injuries and reducing judicial remedies for those caught by the cap.
Assuming the insurance lobby get their way what will ‘minor’ injury caps look like?  The details are incomplete but this is what is known right now.
Who gets stuck with a cap?
If you are injured by the negligence of a distracted, impaired or otherwise careless driver you are having your judicial rights for non-pecuniary damages (pain and suffering) substituted with a government created artificial cap.  In a bizarre twist the Government is proposing to increase the benefits available to the careless driver if they are also injured at the cost of stripping some of the faultless party’s rights.
How much is the minor injury cap?
It is proposed that the cap will be set at $5,500.
How much of a reduction is this from my current legal rights?
A cap already exists across all of Canada (BC included) for non-pecuniary damages in negligence cases.  This cap was set by the Supreme Court of Canada in the late 1970’s at $100,000 and is indexed for inflation.  In today’s dollars non-pecuniary damages can be assessed up to, approximately, $370,000.
What is a “minor” injury?
I put the word “minor” in quotations because the definition will likely capture many claims most people would never consider to be minor.  It is not a medical term, rather, it is a phrase invented by the insurance industry.
The Government has been silent on the exact definition they will use however BC’s Attorney General has stated that the defininon will include “sprains, strains, mild whiplash, cuts, bruises and anxiety and stress“.  These all sound minor but the devil is in the details.  What if injuries become chronic problems?
ICBC hints that chronic injuries can get out of the cap however there’s a catch.  Not only will the injuries need to be chronic but also significantly disabling.  ICBC notes that “if the injury impacts your life for more than 12 months – for example, you’re still not able to go to work or school, have to modify your work hours or duties, or you’re unable to care for yourself – it will no longer be considered minor.”.
So, if ICBC gets their way “minor” will include injuries which can totally disable you for over 11 months.  They will also include permanent injuries so long as you can continue to “go to work or school“.
Who decides if my injury is “minor”?
The Government has been silent on this other than stating  “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.
Is ICBC Foolproof in Designating Injuries as “minor”?
Of course not.  In ICBC’s own words they consider many injuries minor that are, in reality, complex and costly.
What if I want to challenge the designation?
The BC Government has noted that disputes over “the classification of an injury” will be funneled to the BC Civil Resolution Tribunal.
This means that if ICBC (or whatever ‘medical professional’ the government designates as the decision maker) says you have minor injuries you will not be able to have this challenged in court.  Instead you will be forced into a tribunal system.  The tribunal is not presently equipped to handle cases of medical complexity.  They currently only deal with strata fee disputes and very minor small claims.
As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.
The Tribunal also does not have the ability to make binding judgements in Small Claims cases with s. 56.1 of the Civil Resolution Tribunal Act allowing a losing litigant to simply ‘object’ to the result.  The law states that “A party that is given notice of a final decision in relation to a tribunal small claim may make a notice of objection…..If a party makes a notice of objection under this section the final decision is not binding on any party“.
The above are just a few of the shortcomings the BC Government will have to overhaul if they stick to their plan to funnel ‘minor’ injury claims to the Tribunal.
When will the cap come into force?
The BC Government is proposing that people injured by negligent drivers on or after April 1, 2019 will be caught by the cap.
Can I do anything about this?
Yes.  It is not too late to take action and tell the government ‘no to caps’ if you think this is a bad idea.

$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

Written by admin on . Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.
In today’s case (Gauthier v. Dubois) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a variety of injuries many of which enjoyed good recovery.  Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128]     Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129]     Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130]     I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131]     Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132]     Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133]     The plaintiff advances no argument in this regard.

[134]     Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135]     Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136]     Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137]     I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138]     It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139]     Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.

Government Plans to Strip Rights for Insurance Company Profits; ICBC Targeting Psychological Injury

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

Today the BC Government held a press conference where widespread changes targeting the rights of British Columbians to save ICBC money were announced.
In short the Government is creating an artificial cap on what they call ‘minor’ injuries.  As previously discussed even ICBC admits that the term minor injury catches injuries that are ‘complex and costly’.  The pain and suffering cap will be set at $5,500 and is set to kick in in April 2019.
The Government did not provide a full definition of what they call ‘minor’ but ICBC is already noting that in addition to soft tissue injuries that can disable you for up to a year the cap will also target psychological injuries with the insurer publishing a press release saying mental health issues such as ‘anxiety‘ will be caught by the cap.
The Government stated that “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.  If you wish to dispute this designation the government is limiting your rights here as well.  The press release notes that certain ICBC claims will be forced to be adjudicated, not by the courts, but by the BC Civil Resolution Tribunal.  Disputes over “the classification of an injury” will be funneled this way.
As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.
Lastly, if you wish to not have your rights stripped by caps the Government is asking that the victim of bad drivers, not the bad drivers themselves, pay more stating that “Drivers will have an option to purchase additional coverage for a higher limit in pain and suffering compensation. The limit will be set at $75,000 and will cost approximately $1,300 a year, on top of the cost of their basic and other optional insurance. Charging for this optional coverage means the customers who stand to benefit from increased coverage will pay for it, rather than every B.C. driver.”
You read that right – if you don’t want your rights stripped you need to pay $1,300 more per year, not the distracted and impaired drivers on our roads!
As Yogi Berra said, It Ain’t Over Till It’s Over!  If the above strikes you as unfair please  contact your MLA and tell the government plainly and clearly ‘no to caps’.

ICBC Admits Lobbied "Minor" Injury Caps Will Impact "Complex and Costly" Claims

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

As discussed last month, after years of record profits ICBC is experiencing a bout of financial hardship.  In turn the government is considering stripping your rights if you are injured by a distracted or impaired driver.  Stripping judicial rights to save bad drivers and ICBC money.  A poor trade-off.
Today ICBC published a press release noting they “are working hard alongside government to take the steps necessary to bring about long-term solutions which will put ICBC back on a stable financial footing, one that will create a sustainable auto insurance system for B.C.”
The “work” is persuading government to pass a law placing a cap on what they call ‘minor’ injury claims.
ICBC’s own press release, however, advanced the best argument why caps are a defective idea that target seriously injured victims.
In ICBC’s own words
“older claims – some dating as far back as 2010 – which were initially presented as minor injury claims have since emerged as more complex and costly, large loss claims. Over the past 12 months, we have experienced an unprecedented 80 per cent growth in large loss claims which have an average cost of $450,000 per claim.”
I could not make the argument better myself.   You can be injured by a bad driver and suffer “complex and costly” injury that initially presents as minor.  ICBC knows a “caps” law will catch claims worth hundreds of thousands dollars and instead result in victims receiving pennies on the dollar for long term pain and disability.  They want victims to shoulder the shortfall so bad drivers and the insurance industry can benefit.
If this seems unfair to you contact your MLA and tell the government plainly and clearly ‘no to caps’.