Tag: brain injury claim

Leave For Appeal Denied in Computer Hard-drive Disclosure Case


In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.

Brain Injury Claim Dismissed, $55,000 Pain and Suffering for STI's and Hearing Loss

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.
The Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle.  The Plaintiff had a green light and a significant impact occurred.
The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off.  Liability (fault) was admitted on behalf of the defendants on the morning of trial.  The trial focused on the Plaintiff’s injuries and their value.
The most contentious claimed injury was a concussive injury affecting cognitive abilities.   The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges.  In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident.  But I am not persuaded that it is more probable than not that this occurred.”
Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 – 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.
In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89]            I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall.  I would describe the severity of these injuries as being moderate.

[90]            I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident.  Not all of this loss of hearing was caused by the injury.  Some of it was attributable to the normal aging process.  I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91]            I am not satisfied that the plaintiff sustained injury to her brain.  Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium. 

[92]            The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder.  Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future.  These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions.  To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop.  But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder.  The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation.  But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

ICBC Claims, Limitation Periods and Infants

Let me begin by saying that when people talk about “ICBC claims” they typically refer to two different types of claims. The first has to do with ‘own insurance’ that is, you are insured with ICBC, something occurs that requires you take advantage of this insurance and you apply for your own insurance benefits. This is commonly referred to as a ‘first party claim’.
The second, and perhaps more frequently discussed, has to do with ‘third party insurance.’ That is, someone insured by ICBC injures you and you claim pain and suffering and other monies from that person, who in turn, is insured by ICBC and thus you deal with ICBC in that capacity.
The main focus of my blog has to do with ICBC third party claims, however, interesting reasons for judgment were released today by the BC Court of Appeal discussing limitation periods and ICBC first party claims.
The following facts are taken from the reasons for judgment based on the Plaintiff’s pleadings.
The Plaintiff was involved in a serious accident in 1995 when he was 6. His bicycle was involved in a collision with a motor vehicle. He suffered serious injuries including a head injury.
The Plaintiff was insured with ICBC and advanced a first party claim. In April 2003 ICBC refused to fund further services recommended for the Plaintiff’s brain injury ‘because Part 7 benefits were no longer available to the Plaintiff because legal action had not been commenced in a timely way‘.
This case focused on the Limitation Act (Which postpones certain limitation periods from running until a person’s 19th birthday in BC) vs. s. 103 of the Insurance (vehicle) Act which provides a 2 year limitation period in many circumstances to advance a claim against ICBC for first party insurance benefits.
I strongly recommend that this case be reviewed along with the applicable limitation periods for any parent involved in an ICBC claim on their children’s behalf. If you don’t have a lawyer for your child’s ICBC claim, it is vital that you are well aware of these potential limitation periods.
In this case the Plaintiff sued ICBC, not claiming his PArt 7 benefits, rather, claiming that ICBC was negligent ‘in adjusting the Plaintiff’s claim for PArt 7 benefits and that ICBC breached its duty to act in good faith‘.
ICBC brought an application to strike out portions of the Plaintiff’s statement of claim.  In other words, tried to dispose of the lawsuit even before it could go to trial.  The trial judge dismissed parts of ICBC’s application and ICBC appealed.
In this case the BC Court of Appeal held that “It is my view that section 103 does not apply to a non-contractual claim against ICBC as long as the claim is not an indirect attempt to enforce the contractual right to benefits. In this case, although ICBC’s alleged breach of duty resulted in the plaintiff failing to obtain Part 7 benefits, the loss of those benefits is not the damage claim being pursued by the Plaintiff. Rather, the plaintiff is seeking damages for his worsened condition as a result of his failure to obtain those Part 7 benefits.”
In terms of whether ICBC has to tell an injured ‘insured’ person about the limitation periods ICBC argued that ‘it is plain and obvious that (ICBC) did not owe a duty of care to the plaintiff to advise him or his mother regarding the coverage available to them under Part 7 of the Regulation (including advice about the kind of therapy and treatment that could be funded and the existence of the section 103 limitation period).”
Our BC Court of Appeal disagreed with ICBC and stated that “It is not plain and obvious that the present situation is not sufficiently analogous to Fletcher for the court to recognize the duty of care in the present case…..I would not give effect to ICBC’s submission that the court should strike out the allegation in the statement of claim that ICBC owed a duty of care to advise the Plaintiff or his mother of the plaintiff’s entitlement to benefits under Part 7 of the Regulation and of any limitations on his entitlement‘.
The Court of Appeal, however, did not go so far as to state that ICBC does owe a duty of care to tell it’s insured about limitation periods for first party claims. All that was decided was the Plaintiff was allowed to have his day in court to decide this issue.
The bottom line is that ICBC may not have to tell you your limitation periods (even if you are the parent of a brain injured child involved in an ICBC claim) and it is noteworthy that ICBC argued in court that ‘it is plain and obvious’ that ICBC does not have to advise this brain injured child’s parents of the limitation period. SO KNOW YOUR LIMITATION PERIODS OR GET LEGAL ADVICE!

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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