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Tag: bc injury law

The Cost of Insurance Fraud in BC

Written by admin on . Posted in Uncategorized.

If you regularly read this blog you know I hate insurance fraud.  When fraudulent claims are weeded out that’s a good thing.  However, I equally dislike the cost of fraud being blown out of proportion.
Have you ever heard sound bites that insurance fraud is on the rise or spiralling out of control?  If you have a quick look behind the sound bite is important.
Occasionally the insurance industry provides press releases discussing the high cost of insurance fraud.  Often these are accompanied with the suggestion that some sort of ‘reform‘ is needed before fraud makes the system unsustainable.  We don’t get much of this nonsense in BC but in other parts of Canada this is an old song and dance.  The reforms that are urged typically boil down to stripping individual rights for the benefit of insurer profits.
So what is the hard data behind insurance fraud statistics in BC? It turns out, at least insofar as auto insurance claims are concerned, that there is no data.
The BC Utilities Commision recently asked for data addressing auto insurance fraud in BC.  Here is the exchange:

Other Provinces, Ontario in particular, have had a lot of discussion of the high cost of fraud.    A number is often put to the cost of fraud without any hard data to back it up.  It is important to look behind the sound bites to see what actual data the insurers have when they make such allegations.  Perhaps other Canadian insurers will be as willing as ICBC to show their hand and reveal what actual data they have.  Turns out, there may not be any.

"The Pain Remains Real to the Victim" Despite Low Velocity Impact

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

In the latest judicial demonstration that the so-called Low Velocity Impact Defence is not the law, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, awarding damages following a motor vehicle collision.
In yesterday’s case (Sun v. Sukhan) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist.  The collision caused very little vehicle damage.  The Defendant stressed this during trial.  Madam Justice Maisonville provided the following reasons addressing the value of this evidence:

[22] The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

The Court went on to find that the collision caused soft tissue injuries that largely resolved after 21 months but continued to occasionally flare.  In assessing non-pecuniary damages at $20,000 the Court provided the following reasons:

[55] In all of the circumstances, I find while the plaintiff’s injuries had largely resolved within one year and nine months, he has some ongoing complaints of pain, coupled with his inability to perform certain activities as a consequence of his fear of causing flare-ups to his lower back such as carrying heavy objects.

[56] Taking evidence as a whole, I find that the plaintiff has, on a balance of probability, proved he was injured from this accident for one year and nine months and that he presently has some minor complaints on occasion relating to his lower back and neck, but that these are not preventing the plaintiff from enjoying his pre-accident state of health and activity level.

[57] I award the following:  Non-pecuniary  damages: $20,000

For more on this topic you can click here to access my archived posts addressing ICBC’s Low Velocity Impact Policy.


ICBC Claim Frequency Down – Trend Projected to Continue

Written by admin on . Posted in Tort Reform, Uncategorized.

Have you ever heard the insurance industry discussing how claims are out of control and without ‘reform‘ coverage will become unsustainable?  In BC we are fortunate that this type of rhetoric has never been accepted.
In some other Provinces, however, such soundbites have caused governments to strip or modify individuals right to sue when harmed through the carelessness of others.  In BC this is not the case.  Given this claims must out of control, right?  The short answer is absolutely not.
The latest data filed by ICBC with the BC Utilities Commission shows that not only are the number of claims down but the Ultimate Claim Frequency (the number of actual claims also factoring in the number of auto insurance policies) is also significantly down.

But this data only covers 2001-2010, surely things will get worse in the future right?  Absolutely not.  The below ICBC claims frequency projections are quite revealing.

This data illustrates that the public does not need to have their tort rights stripped in order to have a stable and functioning auto insurance industry.  Provinces that have fallen for tort-reform rhetoric should have a sober look to BC’s positive experience.

Hard Data on ICBC's Legal Costs from 2003-2011

Written by admin on . Posted in Tort Reform, Uncategorized. 47 Comments on Hard Data on ICBC's Legal Costs from 2003-2011

As previously discussed, one of the benefits of having a crown corporation as our Provincial auto-insurer is the accountability that comes with public reporting obligations.
In support of ICBC’s recent request for a rate increase with the BC Utilities Commission ICBC filed thousands of pages of further data earlier this week.  ICBC’s latest filing can be found here.
Included in the filing was data relating to ICBC’s legal costs from 2003-2011.   On review it is apparent that many of these costs have remained steady over time while some expenses have decreased dramatically.  I highlight this information as it runs against the notion advanced by so-called ‘tort-reformers‘ that litigation costs are ever increasing or somehow out of control.  To the contrary, this data reveals a fairly steady and reliable system in action.

"Pro Forma" Pleadings Not Enough To Compel MSP Record Production

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 3 Comments on "Pro Forma" Pleadings Not Enough To Compel MSP Record Production

Further to my previous post on this topic, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether MSP records were producible in a personal injury claim.
Today’s case provides perhaps the most in depth analysis of the issue to date and is worth reviewing in full.  In short the Court held that such records may be disclosable given the right circumstances but a ‘pro forma’ pleading of pre-existing injury is not sufficient to trigger disclosure obligations.
In this week’s case (Kaladjian v. Jose) the Plaintiff was injured in a collision.  The Defendant applied for production of the Plaintiff’s MSP printout.  The Plaintiff’s lawyer had this document but did not produce it arguing it was not relevant.  The Defendant’s application was dismissed at first instance.  The Defendant appealed arguing MSP records were disclosable as a matter of course in a personal injury claim.  Mr. Justice Davies disagreed and dismissed the appeal.  In doing so the Court provided feedback as to the proper procedure when seeking production of such records and gave the following reasons:

[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, …

[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.

[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”

[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.

[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made…

[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.

[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents…

[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).

[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.

[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro formapleadings…

70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.

$75,000 Damages for Onset of Knee Arthritis Pain; Golden Years Doctrine Applied

Written by admin on . Posted in ICBC Knee Injury Cases. 110 Comments on $75,000 Damages for Onset of Knee Arthritis Pain; Golden Years Doctrine Applied

Reasons for judgement were released earlier this month assessing damages for a knee injury caused in a 2007 collision.
In the recent case (Dulay v. Lachance) the Plaintiff was injured in a broadside collision. Fault for the crash was admitted by the offending motorist. The Plaintiff suffered from chronic knee pain and dysfunction following the crash. The trial focused largely on whether the collision was responsible for this.
Investigation following the collision revealed that the Plaintiff had pre-existing arthritis in his knee. As is often the case, this condition was asymptomatic prior to the crash.
The plaintiff presented medical evidence suggesting the collision was responsible for the onset of pain. The defendant argued the collision was coincidental to the onset of symptoms. The court preferred the Plaintiff’s evidence. In assessing non-pecuniary damages at $75,000 Madam Justice Maisonville applied the ‘golden years‘ doctrine and provided the following reasons:

[78] Dr. McLeod had described the contusion to the right medial femoral condyle and medial tibial plateau (very simply put – the area where the femur meets the lower leg bones) as mild, but as noted he separated this injury from the triggering of the arthritis as clarified in his second report. I accept his evidence on this point and find that his attribution of “mild” to the injury did not mean to incorporate the onset of symptoms of osteoarthritis.

[79] Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.

[96] The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.

[97] The plaintiff relies on the report of Dr. Grover who wrote:

It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.

As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident…

[106] There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident…

[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[124] I find Griffin J.’s reasoning apt here in Mr. Dulay’s case where he is nearing retirement and has lost the ability to function in a way that has altered how he lives.

[125] Additionally, Mr. Dulay continues to work and perform everything he can. He has not asked for his employer to accommodate him. He is a team player and endeavours to do everything he can even though he must stop, take medication, and bear much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet, 2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:

Stoicism of the plaintiff should not reduce the award.

[126] In all the circumstances of the case I award the plaintiff $75,000 in non-pecuniary damages.

Government Housing Loan Potentially Leads to Private Law Duty of Care in Brain Injury Case

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized.


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether a government home improvement loan can create a private law duty of care.
In last month’s case (Benoit v. Banfield) the Plaintiff suffered a serious brain injury when falling from a staircase built by the Defendant. The Defendant reportedly built the stair case “without handrails or guards“.
The construction was financed in part by a forgivable loan provided by the Canada Mortgage and Housing Corporation (“CMHC”). The loan was part of a program called the Canadian Home Renovation Plan. The money was to be advanced “upon satisfactory completion of the work” by the homeowner and CMHC was to conduct two inspections to ensure the work was “completed satisfactorily“.
The Plaintiff sued the homeowner and also the CMHC. The CMHC applied to dismiss the lawsuit arguing that their limited relationship to the plaintiff did not create a private law duty of care. Madam Justice Wedge disagreed and allowed the lawsuit to proceed. In doing so the Court provided the following reasons:

[39] In the present case, CMHC offered grants of up to $3,000 per applicant for a one-year period. The pool of funds from which to draw was limited in the amount of $30 million. Thus, even were one to consider the possibility of a duty of care to all loan recipients, the number of persons is not indeterminate. In the context of the present case, liability extends only to the class of persons who might reasonably be foreseen as users of the defective staircase in question.

[40] Thus, I conclude that on the facts as pleaded by the infant plaintiff, there is a reasonable prospect of successfully establishing proximity. The plaintiff’s claim is grounded in allegations of specific conduct by CMHC concerning the creation of the defective staircase and its negligent inspections.

[41] As noted by the Supreme Court of Canada in Imperial Tobacco at para. 47:

… where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis.

[42] This case falls squarely within the circumstances described in that passage, and accordingly the motion to strike is dismissed.

Formal Settlement Offers and Costs Consequences: A "Broad Discretion"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.


Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, discussing the broad discretion that Judges have respecting costs consequences following trial where formal settlement offers have been made.
In last month’s case (Ward v. Klaus) the Plaintiff was involved in a motor vehicle collision.  Prior to trial ICBC tabled a $493,000 settlement offer.  As trial neared the offer was increased to $595,000.  The Plaintiff rejected these offers and went to trial.  At trial the presiding judge awarded just over $434,000.
ICBC brought an application to be awarded post offer costs.  This would have created a ‘costs swing‘ of $149,000.  Mr. Justice Goepel ultimately stripped the Plaintiff of her post offer costs but did not make her pay the Defendants costs reducing the sting of her failure to best the formal settlement offer.  In demonstrating the ‘broad discretion‘ of Rule 9-1 Mr. Justice Goepel provided the following reasons:

[32] Since its inception in 2008, much ink has been spilled explaining the Rule. LexisNexis Quicklaw presently references some 231 decisions in which the Rule has been discussed. From the decisions, some broad principles of general application have emerged concerning how the Rule should be applied.

[33] It is now generally recognized that the Rule provides for the exercise of a broad discretion by trial judges and provides principles to guide in the exercise of that discretion: Roach v. Dutra, 2010 BCCA 264, 5 B.C.L.R. (5th) 95…

[53] For the reasons I have stated, it cannot be said that the plaintiff should have accepted either offer. That is, however, the beginning, not the end of the analysis. Unlike Rule 37 which mandated the outcome regardless of the circumstances, Rule 9-1 gives the court a broad discretion to determine the consequence of a successful offer to settle. While the Rule is intended to reward the party who makes a reasonable settlement offer and penalizing the party who fails to accept it, the several options set out in Rule 9-1(5) allows the court to determine with greater precision the penalty or reward appropriate in the circumstances.

[54] In this case, regardless of the merits of the plaintiff’s case, the defendant’s offers to settle cannot be ignored. To do so would undermine the purpose of the Rule. Having decided to proceed in the face of two not insignificant and ultimately successful offers to settle, the plaintiff cannot avoid some consequences. That said, in the circumstances of this case, to deprive the plaintiff of her costs and have her in addition pay the costs of the defendant would be too great a penalty. It would not be fair or just to require the plaintiff to pay the defendant’s costs after the date of the First Offer. Similarly, however, I find that the defendant should not pay the costs of the plaintiff after the delivery of the First Offer, which costs were only incurred because the plaintiff decided to proceed.

[55] Accordingly, I find that the plaintiff is entitled to her costs up to May 3, 2010. The parties will bear their own costs thereafter.

The Blog Post That Led to Acquittal

Written by admin on . Posted in Uncategorized. 71 Comments on The Blog Post That Led to Acquittal

Earlier today a colleague from work stumbled across an interesting 2011 case from the BC Provincial Court that I thought was worth sharing.
In the recent case (R v. Birring) the Defendant was charged with leaving the scene of an accident following a single vehicle collision.  He represented himself in Traffic Court.  He came to trial armed with “a one page extract from the internet of a blog of a BC lawyer on the duties of motorists involved in singe vehicle accidents…This internet extract cited ICBC v. Pariah Productions Inc.”   (For what its worth here is my 2010 Blog Post titled “Duties of Motorists Involved in Single Vehicle Accidents Discussed” addressing ICBC v. Pariah Productions Inc).
The Presiding Justice of the Peace noted that Blog posts don’t amount to a ‘complete citation’ but expressed surprise at the law as applied in ICBC v. Pariah.  Justice of the Peace Gordon reserved judgement to ‘more thoroughly canvass the law‘.  After doing so the Court, while voicing criticism of the law as applied in ICBC v. Pariah, concluded the case was binding on the Court and acquitted the Defendant.  The Court provided the following reasons:
[]      Mr. Birring cited in his defence on the first charge that, on the facts, section 68 did not apply to him.  In support, he provided the court with a one page extract from the internet of a blog of a BC lawyer on the duties of motorists involved in single vehicle accidents.  This form of legal support illustrates the difficulty in traffic court of deciding issues without the benefit of counsel on each side.  This internet extract cited ICBC v. Pariah Productions Inc., a decision of the BC Supreme Court.  Pariah is an appeal of a decision of this Court in a small claims matter.  The extract reproduced in the printout from the blog suggested it supported Mr. Birring’s position, but as it was not a complete citation of the case, and it appeared to give a different interpretation of section 68(1) than I would have, I reserved judgment to more thoroughly canvass the law…







[]      As I am bound by the decision in Pariah, I conclude that as section 68(1) of the Motor Vehicle Act does not apply based on the interpretation given in Pariah, I must find on the facts that Mr. Birring is not guilty of an offence under any provision of section 68 and I acquit him of charge 1.  As there were insufficient facts to support a charge of making an illegal U-turn, I acquit Mr. Birring of charge 2.









Liability Denial To the Cusp of Trial Brings Judicial Criticism

Written by admin on . Posted in ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:
[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…
The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.