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Back To Basics: Proving Fault in a BC Personal Injury Claim

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


When suing for damages as a result of a personal injury claim (specifically a Negligence claim) there are 3 basic matters that must be proven.  These were discussed in reasons for judgement released earlier this week by the BC Supreme Court, Nanaimo Registry.
In this week’s case (Brooks-Martin v. Martin) the Plaintiff was involved in a 2005 motorcycle crash in Saanich, BC.  She lost control of her bike.  She claimed that another motorcyclist, who was travelling in front of her, swerved in front of her causing her crash.  She sued the other motorist and also a  company she alleged was responsible for failing to clean up gravel spilled onto the road which allegedly contributed to the crash.
At the close of the Plaintiff’s claim the Defendant brought a ‘no-evidence’ motion and asked the Court to dismiss the Plaintiff’s claim.  Mr. Justice Halfyard refused to do so and provided the following succinct reasons summarizing the law of no-evidence motions and the basic requirements of a successful lawsuit for negligence in British Columbia:
[5] The legal test that must be met by a defendant who makes a motion for non-suit has been stated many different ways by many different courts. Based on the authorities, I would state the rule in this way:  In order to succeed on a motion for non-suit, a defendant must persuade the court that there is no evidence which is capable of proving one of the essential elements of the cause of action alleged against the defendant. The court must not weigh evidence or attempt to make findings of fact or to assess credibility. If an inference which is essential to the plaintiff’s case would be “mere speculation,” the defendant’s “no evidence” motion should be granted. See Fenton v. Baldo 2001 BCCA 95 at paragraphs 25-26; Seiler v. Mutual Fire Insurance Co. 2003 BCCA 696 at paragraph 12; Craigdarloch Holdings Ltd. at paragraphs 14 and 30; and Tran v. Kim Le Holdings Ltd. 2010 BCCA 156 at paragraph 2….

[27]        A plaintiff who sues for damages for personal injury allegedly caused by the defendant’s negligence, must prove:

a)    That the defendant owed him or her a duty of care;

b)    That the defendant did an act or failed to do an act, which act or omission fell below the standard of care required of the defendant; and

c)    That the defendant’s said act or omission caused an accident (which caused injury to the plaintiff).

(See Linden & Feldthusen, Canadian Tort Law, 8th edition (2006), page 108)

[28]        In my opinion, there is some evidence which, if believed, could support findings of each and every essential element of the cause of action alleged against MacNutt. To my mind, none of the disputed inferences required to support the plaintiff’s case at this stage, would be “mere speculation.”

[29]        It was for these reasons that I dismissed MacNutt’s motion for non-suit.

Mechanical Back Pain and Diminished Capacity For Stay at Home Parents Discussed

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Wage Loss, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing non-pecuniary damages for mechanical back pain and further discussing awards for ‘diminished earning capacity‘ for stay at home parents who intend to return to the workforce.
In this week’s case (Bergman v. Standen) the Plaintiff was involved in a 2006 motor vehicle collision.  Fault for the crash was admitted by the other motorist.  The Plaintiff was 27 years old at the time of the crash and did not have “an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home-mother”.
The Plaintiff sustained injuries in the crash which included soft tissue damage and mechanical back pain.  Some of these symptoms were expected to be permanent although there was room for improvement with further therapy.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In arriving at this figure the Court provided the following reasons:
[63] To summarize, Ms. Bergman was a 27-year-old mother of two young children, who suffered a Grade II whiplash injury to her neck and upper back, which resolved after several months and left her with no recurrent symptoms. She also suffered contusions, bruises to her face and chest, and a sore wrist, which resolved without ongoing difficulties shortly after the accident. Finally, and most significantly, she suffered a mechanical injury to her lower back that, I am satisfied, caused her significant pain and discomfort in the four and a half years since the accident. I am not persuaded that the discomfort is as significant as Ms. Bergman describes it, but it is nevertheless significant. I am satisfied that her lower back will remain symptomatic indefinitely. If, however, she follows the advice of Dr. Travlos and others, and commits to a program of physical conditioning and determines to work through the limitations that her low back may present, rather than dwelling on them, the degree to which that injury will affect her life in the future will moderate. In light of this, I am satisfied that an appropriate award for non-pecuniary damages is $77,500. This amount includes $2,500 for past loss of housekeeping capacity for reasons I will explain below.
This case is also worth reviewing for the Court’s discussion of diminished earning capacity (future wage loss) awards for Plaintiffs who are out of the workforce at the time of their injuries.   As previously discussed there is nothing preventing such plaintiffs from being awarded damages for future wage loss given the right circumstances.  In assessing the Plaintiff’s loss at $65,000 Mr. Justice Barrow provided the following useful reasons:
[80] Ms. Bergman does not have an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home mother. I accept that Ms. Bergman planned to and will return to work when her youngest child reached school age. I accept that the sort of work she is destined to do will likely involve an emphasis on physical as opposed to mental exertion. There is a mill in Lavington that Ms. Bergman thought about applying to. She impresses me as the sort of person who would find work of that nature rewarding and challenging. It is with a view to those real and substantial possibilities that the question of her indefinite, albeit moderating disability, needs to be assessed….
[84] I recognize that Dr. Coghlan, in his September 21, 2009 report, concluded that he would “not restrict her activity level in terms of jobs on the basis of today’s findings”. I am not sure that the opinions of the physiatrists are in conflict. Whether they are or not, I am satisfied that Ms. Bergman has established an impairment of her capital asset, being her ability to earn an income in the future. Valuing that loss is necessarily an imprecise exercise. Lacking any better measure, I consider that an award equivalent to between one and two years of Ms. Bergman’s likely future annual income to be reasonable. I fix her loss of future earning capacity at $65,000.

Independent Medical Exams and Forced "Waivers"

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, independent medical exams, Uncategorized. 4 Comments on Independent Medical Exams and Forced "Waivers"


When Plaintiffs attend defence medical exams some doctors require patients to fill out questionnaires and waivers of liability.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law and concluding that Plaintiffs cannot be forced to sign waivers through the Court ordered independent medical exam process.
In today’s case (Mund v. Braun) the Plaintiff was involved in a motor vehicle collision and allegedly sustained some complex injuries.  In the lawsuit the Plaintiff agreed to attend a defence medical exam with a neurologist (Dr. Makin).  Dr. Makin requested that the Plaintiff sign a waiver form indicating that the Plaintiff “will not sue Dr. Makin outside of BC.”.  As previously discussed, BC law provides doctors with a strong immunity from lawsuits arising from carelessness in the independent medical examination process.  The reason for this waiver was to apparently protect the doctor against the remote chance that the Plaintiff could sue outside of BC.  The Plaintiff refused to sign the waiver.
The Defendant brought a motion and the BC Supreme Court was asked to decide whether the Plaintiff could be forced to sign such a waiver.  Mr. Justice Brown dismissed this motion finding that unless the Court of Appeal rules otherwise the law is settled that BC Courts don’t have jurisdiction to force plaintiff’s to sign such waivers.  In addressing this point Mr.  Justice Brown held as follows:
[38] In any case, on the question of requiring the plaintiff to sign the Jurisdiction agreement, I am bound by Desjardins (Litigation guardian of) v. Huser, 2010 BCSC 977; Kobzos v. Dupuis, 2006 BCSC 2047; Stead v. Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (BCSC); and Allan-Trensholme v. Simmie, [2006] B.C.J. No. 720 (BCCA). I do not have jurisdiction to order the plaintiff to sign the Jurisdiction Agreement. On the narrow point of whether jurisdiction remains with the court under the Civil Rules to require a party to sign an authorization for documents in the possession of a third party but over which the party has sufficient control, e.g. the party’s clinical records kept by their physician, that is governed by the cited cases until such time as the Court of Appeal specifically rules on that. For now, the general question appears settled; and as for the facts at bar, in my view, the consent in this case falls squarely within the ambit of the authorities cited.
This case is also worth reviewing for the Court’s discussion of the extent of testing that can take place during a Court ordered exam.  Dr. Mund wished to conduct electro-diagnostic testing of the Plaintiff.  The Plaintiff refused.  Mr. Justice Brown held that this test was permitted and in so finding stated as follows about doctors discretion during the testing process:
[16] I accept Dr. Makin’s explanation that electro-diagnostic studies are considered an extension of neurological examinations. I find the testing is minimally invasive, and would not invade the plaintiff’s privacy…

[19]         Given the variety of causes attributed to the plaintiff’s symptoms, which include thoracic outlet syndrome, myofascial factors, soft tissue pathology in the neck and right shoulder, cervical spine disc disease with a degenerative factor and even diabetes II, diagnosis is obviously a not straight forward exercise in this case.

[20]         I am satisfied nerve conductions studies are relevant to the issues raised and the pleadings and in the medical reports written for the plaintiff. The defendant submits there is at least a possibility the plaintiff’s tingling and numbness could result from degeneration in his cervical spine or unrelated nerve problems in his right arm; and the origin and causation of his neck, shoulder and arm symptoms are related to the pleadings.

[21]         I also agree that affording Dr. Makin leeway to conduct nerve conduction studies he sees as necessary is required in order to ensure reasonable equality between the parties. The studies will not necessarily duplicate earlier ones. An electro-diagnostic study is a reasonable extension of the clinical examination if the examining physician comes to judge it necessary to form, or confirm, their professional diagnostic opinion.

[22]         Therefore, the plaintiff will submit to electro-diagnostic testing by Dr. Makin if requested to do so.

Expert Witness Criticized by BC Supreme Court for "Advocacy"

Written by admin on . Posted in BCSC Civil Rule 11, ICBC Fibromyalgia Cases, independent medical exams, Uncategorized.


Further to my previous posts on this topic, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial.  Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
In addition to the above, the BC College of Physicians and Surgeons (the governing body for BC doctors) has provided the following feedback to its members:  “ Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports.   The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.”
If experts fail to give objective evidence their opinions can be excluded from trial and they open themselves to criticism from the trial judge.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Warkentin v. Riggs) the Plaintiff was involved in a 2005 motor vehicle collision.  The Defendant admitted fault for the crash.  The Plaintiff sustained various injuries including an alleged post traumatic Fibromyalgia Syndrome.  In support of her case the Plaintiff filed several medical reports.  The Defendant objected to one of these being introduced on the basis that the expert ignored his duty to the Court and presented his evidence not as a neutral expert but rather as an ‘advocate‘.  Madam Justice Gropper agreed and excluded the expert’s evidence.  In doing so the Court provided the following harsh criticism:
[58] Dr. Hunt’s report adopts a particular format. He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy…

[81]        I find that Dr. Hunt is not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the plaintiff. The report is argument, not opinion. He did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. His discussion of the medical principles and their application to the plaintiff’s case is biased, argumentative and contrary to the requirements for the admissibility of an expert report.

[82]        Dr. Hunt’s own description of his role as an “Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition” indicates that he does not consider his role as an expert to be that of an objective advisor to the court.

[83]        Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis.

[84]        Dr. Hunt presents the medical literature in a manner that suggests that there is consensus about the causal connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature upon which he relies by referring only to portions which support his diagnosis and prognosis and omitting portions which do not. He does not refer to the cautions and qualifications in the medical literature. He is not current with the medical literature, notably the 2006 prospective longitudinal study by Tischler, which was conducted specifically in order to test the conclusions of the Buskila study.

[85]        Dr. Hunt’s testimony, particularly in cross-examination, supports my conclusions about his report; he acted as the plaintiff’s advocate rather than as an independent expert.

[86]        Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible. Because the rebuttal report is a reiteration, it is also inadmissible. I specifically reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion that they were caused by the accident. I reject Dr. Hunt’s diagnosis and prognosis of fibromyalgia and his opinions about the plaintiff’s functional limitations associated with fibromyalgia.

Ultimately the Court accepted that the Plaintiff did suffer from fibromyalgia but that this was not related to the motor vehicle collision.  Madam Justice Gropper found that the Plaintiff did sustain soft tissue injuries to her neck and shoulder along with headaches as  a result of the crash.  $50,000 was awarded for the Plaintiff’s non-pecuniary damages.

In addition to the discussion of ‘advocacy‘ this decision is worth reviewing in full for the Court’s discussion of the relationship between fibromyalgia and trauma.

Excluding Prejudicial Evidence in BC Civil Claims

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 73 Comments on Excluding Prejudicial Evidence in BC Civil Claims


One exception to the general rule that relevant evidence should be admitted in a civil trial deals with prejudice.  If the prejudicial effect of relevant evidence outweighs it’s probative value a trial judge has the discretion of excluding it.  The BC Court of Appeal recently discussed this principle in the context of an ICBC claim.
In today’s case (Gray v. ICBC) the Plaintiff was involved in a motor vehicle collision.  She was allegedly at fault for this crash and was sued by the driver and passenger in the other vehicle involved in the collision.  The Plaintiff was insured with ICBC.  ICBC denied coverage to the Plaintiff arguing that she was impaired at the time of the crash and therefore in breach of her insurance.  The Plaintiff sued ICBC arguing she was not impaired and that ICBC was required to provide her coverage.
After the crash the Plaintiff was given a breathalyzer test by the Vancouver Police Department and her test yielded readings well above the legal limit.  At trial the Plaintiff argued that the breathalyzer readings were faulty because the machine was not set up properly.  ICBC responded with expert evidence stating that “there is nothing to indicate that the Breath Test Supervisor did not set up this instrument correctly“.   The Plaintiff countered pointing out that there was nothing in the police files indicating what set up steps were taken by the Breathalyzer Supervisor.  This left ICBC scrambling and in the course of trial they were able to locate the Breathalyzer Supervisor and the notes detailing the set up steps that were taken at the relevant time.
The Plaintiff objected to this evidence being introduced arguing that it’s late disclosure was severely prejudicial.  The trial judge agreed.  The Court held that while the supervisor could testify he could not rely on  or refer to the breathalyzer maintenance notes in giving his evidence.  Ultimately the Plaintiff succeeded at trial with the judge finding that she was not in breach of her insurance.  ICBC appealed arguing the trial judge was wrong in excluding the evidence.  The BC Court of Appeal allowed the appeal and ordered a new trial.  In doing so the BC High Court provided the following reasons about the exclusion of prejudicial evidence:
As Mr. Justice Wood said, speaking for this Court in Anderson (Guardian ad litem) v. Erickson (1992), 71 B.C.L.R. (2d) 68 (C.A.), “There is no doubt that a Judge trying a civil case in Canada has a discretion to exclude relevant evidence on the ground that its prejudicial effect outweighs its probative value”…

[27]         In my view, the trial judge erred in her approach to the exclusion of the documentary evidence prepared by Mr. Czech. In exercising her discretion, she was required to balance the probative value of the evidence against the potential prejudice to Ms. Gray of its admission and to make a judgment whether the prejudice outweighed the probative value. It is apparent that she did not undertake this exercise. Rather, she excluded the evidence after balancing the prejudice to the respondent, Ms. Gray, if the evidence were admitted against the prejudice to the appellants if it were excluded. Thus, she erred in principle in her approach and in failing to take into account a critically important factor – the probative value of the impugned evidence. It follows that she did not exercise her discretion judicially.

[28]         Moreover, the trial judge erred in prohibiting Mr. Czech from using his records to refresh his memory. Witnesses are entitled to refresh their memory by any means, including by inadmissible evidence: see R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535.

Interestingly the BC Court of Appeal did not determine whether the evidence should have been excluded, rather that the wrong test was used.  The Court directed a new trial requiring the correct principle to be applied in deciding whether the evidence should be admitted.

Lump Sum Costs and the New BC Supreme Court Rules

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 1, BCSC Civil Rule 14.


Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, finding that the new Civil Rules give the BC Supreme Court the power to award lump sum costs without the need for taxation.  Madam Justice Adair held that this power was not available under the former rules absent party consent.
In today’s case (Madock v. Grauer) the Plaintiffs sued the Defendants for damages.  At trial one of the Defendant’s was ordered to pay $5,000 in damages.  The parties could not agree on the cost consequences that followed and applied to the trial judge to address this issue.   Madam Justice Adair ultimately held that the Plaintiff was entitled to costs and fixed these at $11,000.  In doing so the Court provided the following reasons about the ability of trial judges to award lump sum costs:

[47]         Under Rule 14-1(15), “The court may award costs (a) of a proceeding . . . and in awarding those costs the court may fix the amount of costs, including the amount of disbursements.”  This Rule is to be contrasted with its counterpart in the old Rules, Rule 57(13), which provided, and I am going to emphasize the first few words:

With the consent of the parties, the court may fix a lump sum as the costs of the whole proceeding, either inclusive or exclusive of disbursements and expenses.

A key change in the new Rule is that consent of the parties is no longer necessary, before the court can fix lump sum costs.

The Court went on to use the new concept of ‘proportionality‘ and found that this was an appropriate case to order lump sum costs.  Madam Justice Adair provided the following reasons:

[49]         I have concluded that these siblings and Mr. Grauer would not be well-served by having a forum – namely, taxation of costs – in which they can continue to litigate over the late Mr. McKenzie’s estate.  Moreover, prolonging litigation among these parties is, in my opinion, out of all proportion to the amount involved, the importance of the issues in dispute and the complexity of the proceeding.  Rather, it is now time for finality.  The costs consequent on my judgment following the trial must also be in some rational proportion to the amount ultimately recovered, which was $5,000.  The costs – indeed the double costs – that the plaintiffs suggest in their submissions they should be awarded are out of all proportion to what would be reasonable.

[50]         I have therefore concluded that, in this case, orders should be made for lump sum costs under Rule 14-1(15)

We Don't Need Your Consent! – ICBC Claims and Medical Reports

Written by admin on . Posted in ICBC Privacy Issues, independent medical exams, Uncategorized. 112 Comments on We Don't Need Your Consent! – ICBC Claims and Medical Reports


If you’re involved in a BC motor vehicle collision and have your injuries treated by a “medical practitioner” ICBC can compel the medical practitioner to provide them with a report documenting your injuries.  This is so even if you are not insured with ICBC and even if you don’t consent.  Reasons for judgement were published this week on the BC Supreme Court’s website discussing this area of law.
In today’s case (Pearlman v. ICBC) the Plaintiff was involved in collision in 2004.  He was insured with a carrier from Washington State.  The other motorist was insured with ICBC.   The Plaintiff initially contacted ICBC and signed an authorization permitting ICBC to obtain medical information relating to his injuries.  About a year later the Plaintiff hired a lawyer and cancelled the authorization.  Despite this ICBC contacted a physician who treated the Plaintiff after the accident (Dr. Lubin) and requested “a narrative medical report“.
Ultimately the Plaintiff’s lawsuit against the other motorist was dismissed at trial.  The Plaintiff then sued Dr. Lubin arguing that the physician breached the Plaintiff’s confidence by providing ICBC a medical report when the Plaintiff withdrew his consent for ICBC to obtain his medical information.  The Plaintiff also sued ICBC directly arguing that ICBC improperly requested the medico-legal report.  Both of these lawsuits were dismissed with the BC Supreme Court finding that whether or not ICBC has written authority, section 28 of the Insurance (Vehicle) Act permits ICBC to obtain reports from treating medical practitioners and that practitioners have “no legal choice” other than to comply with such requests.
In the claim against Dr. Lubin Madam Justice Morrison stated as follows about the mandatory nature of section 28 of the Insurance (Vehicle) Act:
[] Dr. Lubin was obligated to provide ICBC with the report as requested.  Dr. Lubin had no legal choice other than to comply with the mandatory request to submit a medical legal report to ICBC.  This did not amount to a breach of confidentiality as alleged by the plaintiff.
In the claim against ICBC Mr. Justice Smith found that it would be an ‘abuse of process‘ to permit the Jury in that action to make findings contrary to Madam Justice Morrison’s previous decision.  Mr. Justice Smith held as follows:

[14]         The plaintiff also sued Dr. Lubin, alleging a number of causes of action, including negligence and breach of confidence.  That action went to trial before Madam Justice Morrison and was dismissed in reasons for judgment dated March 11, 2009.  Madam Justice Morrison held that when ICBC requested the report, Dr. Lubin was obliged to provide it.  She found that obligation arose out of s. 28 of the Insurance (Vehicle) Act, which reads:

If any of the following persons attends to, diagnoses, treats or is consulted by a person injured in a motor vehicle accident in British Columbia, he or she must, whenever the corporation requests, provide the corporation, as soon as reasonably practicable, with a report of the injuries and their diagnosis and treatment and a prognosis, in the form the corporation prescribes …

The persons then listed include a medical practitioner….

[20] Madam Justice Morrison’s findings regarding Dr. Lubin’s conduct were made on the same or very similar evidence that is before the Court in this case, and I conclude it would indeed be an abuse of process to invite this jury to make contrary findings.

The Plaintiff appealed Madam Justice Morrison’s decision.  In the course of the Appeal the Plaintiff was ordered to post security for costs in the event he lost the appeal.  In reviewing this decision the BC Court of Appeal made the following comments on the matter of ICBC ordering reports not in the ‘prescribed form‘:

[19] Even if Mr. Pearlman were to succeed in his argument that the judge erred in finding that Dr. Lubin was required to provide the report under statute – I note, in that regard, that the report was not prepared in form CL 19, which is ICBC’s prescribed form under s. 28 of theInsurance (Vehicle) Act) – it is difficult to see how his appeal could succeed given the trial judge’s clear finding that Dr. Lubin did not cause him any loss.

These decisions illustrate ICBC’s power to get medical reports even absent patient consent.  It can be argued that the Court of Appeal’s comments can leave individuals with little recourse if ICBC goes further than ordering a CL-19 and in fact obtains a full medico-legal report.  A solution, at least insofar as tort claims are concerned, is for plaintiffs to bring this power to the Courts attention when ICBC insured defendants try to obtain independent medical exams in order to ‘level the playing field‘ under the BC Supreme Court Rules.

No Income Tax Deductions for Depleted Sick Bank Damages

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.


As previously discussed, when a person becomes disabled from work due to injuries and uses up banked sick time they can claim damages to be reimbursed for this loss in a tort claim.
If the tort claim arises from a BC motor vehicle accident the Insurance (Vehicle) Act requires awards for past wage loss to be reduced to take income tax consequences into account resulting in damages only for “net income loss”.  So, when damages are paid for use of banked sick time does the award need to be reduced to take income tax into account?   The answer is no and reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this issue.
In last week’s case (Chalmers v. Russell) the Plaintiff was a school teacher who was involved in two motor vehicle collisions.  The Plaintiff was not at fault for either of these crashes.  As a consequence of injuries sustained the Plaintiff had to use up several thousand dollars of banked sick time available to her through her employment.  Madam Justice Griffin awarded the Plaintiff damages for this loss and in doing so provided the following useful reasons explaining that these awards are not to be reduced to take income tax consequences into account:

[85]         I accept Ms. Chalmers’ evidence that following the first accident, she was so sore and painful that she felt it necessary to take time off work prior to the birth of her child in order to expedite her recovery.  I am mindful that she did not obtain any medical evidence in support of her decision to take time from work.  Regardless, given her advanced state of pregnancy, the trauma of the accident and the pain she was in after the first accident, I consider her decision not to return to work to be reasonable and due to her injuries.  The cost to reimburse the sick bank during this time period is $342.45 per day, totalling $3,766.95.

[86]         As noted in Bjarnason v. Parks, 2009 BCSC 48, depletion of a sick bank is a compensable loss: at para. 56.  However, it is not an income loss so there should be no deduction for income tax in accordance with ss. 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231: Bjarnason at para. 66.

In addition to the above, today’s case is worth reviewing for the Court’s discussion of non-pecuniary damages for mothers whose injuries affect their ability to look after their young children.  In today’s case the Plaintiff sustained various soft tissue injuries which, while not disabling, continued to affect the Plaintiff and interfered with her ability to look after her infant children.  Madam Justice Griffin assessed non-pecuniary damages at $50,000 and in doing so provided the following reasons:

[123] Importantly, Ms. Chalmers has lost the experience of being a relatively pain-free, physically active mother of her infant children during an important period in their young lives.  This is clearly a huge loss for Ms. Chalmers.

[124] I conclude that a reasonable award of non pecuniary damages, that is fair to all parties, is $50,000.

This is not the first time that pain interfering with parenting has been considered a relevant matter by the BC Supreme Court in addressing non-pecuniary damages and you can click here to read a previous post further discussing this topic.

BC Supreme Court Reminds ICBC That The LVI Defence is "Illogical"

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

I’ve written numerous times about the so-called “Low Velocity Impact Defence” to tort claims and that is has been soundly rejected by the BC Supreme Court.  Reasons for judgement were published this week on the BC Supreme Court website further criticizing the LVI Defence.
In this week’s case (Lee v. Hawari) the Plaintiff was injured in 2006 motor vehicle collision.  The Defendant argued that the Plaintiff could not have been injured because this was a low velocity crash.  Madam Justice Adair disagreed and found that the Plaintiff suffered “mild to moderate soft-tissue injuries to her neck, shoulder (including the right trapezius strain) and back, and she continues to suffer some symptoms, including pain, from those injuries as of trial“.  The Court went on to award the Plaintiff $21,000 for her non-pecuniary damages.  Prior to doing so Madam Justice Adair provided the following sound criticism of the LVI defence:
[53] Mr. Hawari appears to suggest that because this was a low velocity collision, Ms. Lee could not have suffered any injury, or could only have suffered minor injuries.  However, this does not follow, either as a matter of logic or legal principle,  as Mr. Justice Thackray reminded litigants (and their insurers) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), at para. 4 to 6.  See also Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053, at paras 12 to 13, and Ceraldi v. Dathie, 2008 BCSC 1812, at para. 27.  The presence and extent of injuries are to be determined on the basis of evidence given in court.
Published reasons such as these aimed at insurance companies behind the defendants are a welcome reminder that deciding whether compensable injuries were sustained in a collision should be determined by viewing all of the evidence, not by artificial standards giving undue focus to vehicle repair costs.

$90,000 Non-Pecuniary Damages For Aggravation of Psychiatric Illness

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $240,000 in total damages as a result of injuries and loss sustained in a BC motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2006 collision.  She was not at fault for the crash.  She sustained physical injuries which included a disk protrusion in her neck.  She also suffered from a pre-existing psychiatric illness (bipolar disorder) which was significantly aggravated as a result of her crash.  The Court assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000.  In doing so Mr. Justice Willcock provided the following reasons:

[126] I accept the evidence of  (the Plaintiff’s) treating physicians that she sustained injury to the musculoligamentous structures of her right neck and shoulder area and that she now suffers from a disk protrusion at the C5-C6 level that may become increasingly symptomatic. Dr. Sahjpaul, the witness most qualified to address the cause and effect of the disc protrusion believes the MRI suggests some cord compression but is not convinced that the plaintiff’s symptoms are entirely, or even significantly a result of that cord compression. I accept his conclusion that the plaintiff has neck pain and right shoulder and arm pain and weakness which is a combination of a soft tissue injury and some irritation of the nerve root at the C5-6 level. I further accept his conclusion that the motor vehicle accident was causative of the plaintiff’s symptoms.

[127] I find that since the accident she has suffered mechanical neck, shoulder, mid-back, and low back pain, weakness, and tenderness. Despite that pain and weakness, she has demonstrated on examination by her physicians that she has relatively normal range of motion. Only minimal back muscle wasting has been noted.

[128] (the Plaintiff) perceives that her persistent back pain limits her ability to engage in tasks that require prolonged static or awkward positioning, including twisting, reaching, or stooping. It is noted, however, that (the Plaintiff) has difficulty with self-assessment and is prone to overestimate the extent of her disability.

[129] I accept the opinion of Dr. Adrian that (the Plaintiff) will probably continue to experience difficulty performing activities that place physical forces on the structures involving her neck and back, but find that (the Plaintiff) is limited as much by psychological as by physical symptoms. While her pain has been chronic there is some indication that with therapy the psychological component of her symptoms is at least temporarily improving.

[130] I accept the evidence of Dr. Adrian and Dr. Sahjpaul that there is a risk that the C5-6 disc will cause increasing pain over time. (The Plaintiff) may require surgical intervention as a result of the obvious and problematic C5-6 herniation seen on the MRI…

[145] The accident in this case has had a significant effect on (the Plaintiff’s) life. I am satisfied on the evidence that she suffered from a significant bipolar affective disorder that required monitoring and medication prior to the motor vehicle accident but that that disorder was significantly exacerbated to the point that she became significantly disabled by her illness from 2006 to 2009. While she is under reasonable control at the moment, her significant depressive and manic episodes have made her more prone to relapse. In addition, she has a physical injury that continues to trouble her and a disk protrusion that may become more symptomatic in the future. Taking into account the likelihood that she would to some extent have suffered from increasing symptoms of bipolar disorder, I am of the view that non-pecuniary damages should be set at $90,000.

In addition to the above, the decision is worth reviewing in full for the Court’s comments about the expert psychiatrist retained by the Defendant.  The Defendants argued that any worsening of the Plaintiff’s bipolar disorder was not a result of the collision, rather it could be better explained by “chronic family stresses, non-compliance with treatment, and pregnancy“.   In support of this argument the Defendant’s relied on Dr. Solomons, a psychiatrist retained by the Defence.  Mr. Justice Willcock rejected this argument and in doing so provided the following criticism of Dr. Solomons opinions:

Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident. He erroneously concluded that (the Plaintiff) had not described the traumatic effect of the accident and its emotional consequences to her physicians, or sought psychiatric help. In cross-examination Dr. Solomons acknowledged deficiencies in his review of the records and misunderstanding of (the Plaintiff’s) history and treatment. While he expressly describes pregnancy as a factor contributing to the increase in symptoms of bipolar illness he does not consider the fact that (the Plaintiff’s) one specific worry during the pregnancy was the possibility of a miscarriage or birth defect due to the motor vehicle accident… I reject most of Dr. Solomons’ opinion

Just last month the BC Supreme court criticized another psychiatrist retained by defence counsel in injury litigation.  Since medico-legal experts generally enjoy immunity from lawsuits if they are careless in expressing their opinions, judicial criticism is a welcome development which can help keep privately retained expert witnesses in-line.