Tag: examination for discovery

Rule 68, ICBC Injury Claims and Proportionality

Written by admin on February 17, 2009. Posted in Civil Procedure.

As readers of this blog know Rule 68 is a relatively new BC Supreme Court Rule designed to bring faster and more cost efficient access to court for claims valued under $100,000. This rule applies tomany types of personal injury cases including ICBC Injury Claims brought in the BC Supreme Court valued under $100,000.
To save time and expense the rule has brought in certain restrictions with how cases are handled under the principle of ‘proprtionality’. In other words, the cost and time involved in bringing a lawsuit should be proportionate to the amount at issue.
In achieving the end of ‘proportional’ justice Rule 68 brought in certain restrictions including limits on the number of expert witnesses each side can use and restricting the ability of the parties to have pre-trial examinations for discovery.
Today reasons for judgement were released by the BC Supreme Court (Geisbrecht v. Shepherd) dismissing a defence application seeking a second independent medical exam and an examination for discovery. In dismissing the application the court discussed the principle of proportionality. The judgement was short and succinct and I reproduce it in its entirety below:

[1] THE COURT: The provisions of Rule 68, of course, are relatively new. While the principle of proportionality is not of itself new, it is a recent addition to the Rules as a specific factor to be considered. Rule 68 derives from the concern of the profession and of the court that the high cost of litigation of relatively modest claims is something to be addressed and if possible corrected.

[2] The circumstances here seem to me to be classic. The plaintiff’s claim is for damages arising out of a soft tissue injury that she sustained in November of 2006. The defendant admits liability. Rule 68 effectively limits the pre-trial process available in order to move the matter forward on the merits in a balanced and fair way as between the parties.

[3] Here there have been both a medical examination by a physiatrist engaged by the plaintiff as well as an independent medical examination by a physiatrist engaged by the defendant. As I understand it, the defendant’s physiatrist found that the plaintiff sustained a soft tissue injury that should resolve, as most of them do, within 6 to 12 months, that 20 percent of those who sustain soft tissue injuries have symptoms that continue beyond that time.

[4] The plaintiff says that she is within that 20 percent and that there is nothing new that was not available to be seen on the first medical examination that is believed or suspected to have come into existence since then.

[5] Having said that, were it not for the underlying purpose of Rule 68 I would still be uncertain as to whether a second independent medical examination should be allowed. However, taking into account the purpose of Rule 68, the principle of proportionality and the mischief of long and extensive small trials which is to be addressed, I decline to order a second independent medical examination of the plaintiff.

[6] I point out that the trial of the matter is set for March of this year and disclosure has been made of the plaintiff’s witnesses, including a will-say statement concerning what those witnesses may be expected to say.

[7] With regard to the defendant’s application for an examination for discovery of the plaintiff, I am once again not without some doubt, but it seems to me that to give effect to the defendant’s application in the circumstances which exist here would be to re-introduce into the practice under Rule 68 the old practice which it seems to me Rule 68 both endeavours to discourage and also provide an alternative to.

[8] In the result, the defendant’s applications are dismissed. Costs will be in the cause.

ICBC Claims and Requests for "Particulars"

Written by admin on September 4, 2008. Posted in Civil Procedure.

Reasons for judgement were released today dismissing a defence applicaiton seeking ‘particulars of the Plaintiff’s wage loss and loss of capacity claims“.
The Plaintiff was invovled in a motor vehicle accident. A Statement of Claim was filed in BC Supreme Court suing for, amongst other things ‘loss of earnings, past and prospective, loss of income earning capacity, loss of opportunity to earn income”
A statement of Defence was filed. The Defendant then examined the Plaintiff for discovery and requested that the Plaintiff provdie ‘particulars of the wage-loss claim being advanced and loss of capacity claim”. The Plaintiff lawyer did not appear to agree to this request.
In dismissing the motion Master Baker noted that this was not truly a a request for particulars, rather this was a motion seeking evidence. The Court held that this motion should have been brought further to Rule 27 of the BC Rules of Court (the rule dealing with examinaitons for discovery) rather then pursuant to Rule 19 (the rule dealing with pleadings).
Master Baker made some interesting comments implying that such a motion may not be succesful even if brought pursuant to Rule 27 because such requests for evidence may be objectionable as being ‘too vague or speculative‘.

More on Examinations for Discovery and Your ICBC Claim

Written by admin on June 13, 2008. Posted in Uncategorized. 118 Comments on More on Examinations for Discovery and Your ICBC Claim

Earlier this month I blogged about the Examination for Discovery process under the BC Supreme Court rules as it relates to ICBC claims. I summarized 14 broad categories that are generally canvassed by ICBC defence lawyers during the examination for discovery process.
Each discovery is unique and an effective examination is much an art as it is a science. I can’t readily blog about all the subtle tricks of the trade that I have seen used at discoveries but I can write a little more about the ‘bread and butter’ topics that are covered at discoveries.
The Law Society of BC (the organization that governs and regulates the practice of law in BC) publishes “Practice Support Checklists Manuals” on their website. These practice manuals are “are intended as a professional reference for BC lawyers only” and are published with the following warning:

The authors of the checklists have assumed that lawyers will exercise their professional judgement respecting the correctness and applicability of the material. Checklists and forms should be used only as an initial reference point. Reliance on them to the exclusion of other resources is imprudent, as conduct of each file depends on its own particular circumstances and instructions of the client.

The practice checklists should be used only as a secondary reference. For definitive answers, lawyers should refer to applicable statutes, regulations, practice directions and case law.
The Law Society of British Columbia, the Continuing Legal Education Society of British Columbia and the authors and editors of the manual accept no responsibility for any errors or omissions, and expressly disclaim any such responsibility.
With that legalese out of the way, I write this blog to point out that one of the Practice Manuals printed by the Law Society provide a checklist for defence lawyers conducting an examination for discovery of a Plaintiff in a car accident claim (and the same is used for ICBC claims plaintiff lawyers for their initial client interviews).
This manual is a great guide to give anyone facing an examination for discovery in an ICBC claim a general sense of the types of questions the lawyer may ask them.
For the convenience of my readers I have reproduced this manual below.
I point out that this manual should not be substituted for good legal advice regarding an ICBC claim, I simply reproduce this to give my readers a sense of the types of topics that may be covered during an examination for discovery in an ICBC claim.
_________________________________________________________________________________________________________

INTRODUCTION

Purpose and currency of checklist.

The checklist should only be used as a guideline as the nature and scope of the interview and the examination for discovery in each case are matters for your own professional judgment. Some of what follows may be appropriate for an interview but would be objectionable on an examination for discovery (e.g., prior driving record). The interview may be wide-ranging and directed to information gathering. The examination for discovery is a cross-examination and must be relevant to the pleadings.

The general framework of this checklist is relevant to most personal injury litigation; however, parts are oriented particularly toward motor vehicle accident litigation. If you use this checklist for other types of personal injury litigation, you will need to modify items 1.6 through 4.14.

New developments:

·1

Client Identification. New Law Society Rules regarding Client Identification and Verification are expected to come into effect on November 1, 2008. These new “know-your-client” Rules, generally based on the Federation of Law Societies of Canada Model Rule (http://www.flsc.ca/), represent a continuation of the legal profession’s initiatives against money laundering. All Canadian law societies are expected to adopt similar Rules in 2008.

Additional resources.

See also Introducing Evidence at Trial: A British Columbia Handbook (CLEBC, 2007); Discovery Practice in British Columbia, 2nd ed., looseleaf (CLEBC, 2004); British Columbia Motor Vehicle Accident Claims Practice Manual, 2nd ed., looseleaf (CLEBC, 2000); British Columbia Civil Trial Handbook, 2nd ed. (CLEBC, 2005); Personal Injury for Legal Support Staff —2006 Update (CLEBC, 2006); Personal Injury for Legal Support Staff (CLEBC, 2003); Personal Injury Conference—2005 (CLEBC, 2005); Defending Personal Injury (CLEBC, 2006); and Personal Injury: Advanced Issues (CLEBC, 2004).

CONTENTS

1. The Plaintiff—Personal Information
2. The Car
3. The Accident
4. At the Scene of the Accident
5. Injuries Sustained by the Plaintiff
6. Practical Consequences of Injuries
7. Plaintiff’s Medical History
8. Treatment of Plaintiff’s Injuries
9. Potential Defendants
10. Damages
11. Other Charges and Claims

CHECKLIST

1. THE PLAINTIFF—PERSONAL INFORMATION

1.1 Name, address, phone numbers, e-mail address, occupation, employer or school, social insurance number.

1.2 Personal history: birth date and place, height, weight, marital status, date and place of marriage, spouse, parents, children, dependents, previous residences for last 10 years, education, medical coverage.

1.3 Whether spouse is employed and, if so, the details.

1.4 Employment history: name, address and phone number of current employer, job title and duties, length of employment with that employer, name of immediate supervisor, remuneration (full history), hours regularly worked (and overtime), typical duties and responsibilities, future prospects, benefits (medical and dental plans, life insurance, pension, paid vacation, employer’s contribution to employment insurance (“EI”), free board and lodging, investment options, company car, union or Workers’ Compensation Board (“WCB”) involvement, paid sick leave, etc.); same details regarding previous employment, including why plaintiff left. Obtain details of any WCB claims or periods of sick leave. Request appropriate employment documents and authorizations. Obtain the name of the union and a copy of the collective agreement to determine validity of a claim for collateral benefits or other employment benefits. Obtain particulars and a copy of policy for any disability insurance for the same reasons.

1.5 Insurance coverage: company, claim number, name of adjuster, type of insurance, any statement made by plaintiff.

1.6 Driver’s licence: class, how long plaintiff has had it, any restrictions (and, if so, whether they were complied with), whether licence has been suspended for any reason in the past, prior convictions.

1.7 Whether plaintiff is an experienced driver and whether plaintiff has previously been involved in any accident.

2. THE CAR

2.1 Owner. If plaintiff was driver but not the owner, how did plaintiff come to be driving the car? Insurance details of vehicle owner.

2.2 Type of car: year, make, standard or automatic, licence number.

2.3 General mechanical condition and details regarding condition of brakes, steering, tires and, where relevant, head and tail lights, signal lights, horn, windshield, windows etc., including when they were last checked, and whether there have been any previous problems.

3. THE ACCIDENT

3.1 Date, time, location.

3.2 Plaintiff’s pre-accident condition (e.g., illness or disability affecting driving, alcohol or drug consumption, physical condition, whether tired or distracted, last sleep, day’s activities).

3.3 Further details about vehicles and parties involved, such as: names, addresses and phone numbers of drivers, owners, passengers, pedestrians, witnesses; types and conditions of other vehicles. Details of other driver’s insurance.

3.4 Road, traffic, and weather conditions, such as: time of day; lighting and visibility; position of sun; road condition; characteristics of accident location (e.g., width of road, number of lanes, straight or curved, center marking, intersections, traffic controls, pedestrian crossing areas, parked cars, any obstructions to vision).

3.5 Whether headlights, windshield wipers, heater, defroster, or radio were on; whether windshield was clear; whether sunvisor was being used; whether plaintiff was wearing sunglasses.

3.6 Whether plaintiff was wearing glasses and, if so, whether this was required under driver’s licence, and when prescription was last checked.

3.7 Whether plaintiff was wearing a seat belt. If so, type and was it snugly fastened? If not wearing a belt, consider information defendant may use for seat belt defence expert opinion (height, weight, body shape, torso length, clothing, type of belt). Whether there was a headrest. If so, was it adjusted for the plaintiff’s height?

3.8 Where plaintiff was going; point and time of departure; destination; route; familiarity with route and location; purpose of travel; whether working; whether in a hurry.

3.9 Details about the accident, such as: location and direction of travel of each party involved; speed at which each was travelling before accident and whether there was any slowing down or acceleration; when other vehicle was first seen; any opportunity for evasive action by either vehicle and, if so, whether it was taken; elapsed time between sight and impact; movement of other vehicle during this time; point of impact; how far vehicles travelled after impact; skid marks; location of damage to vehicles; damage to interior of plaintiff’s vehicle; deployment of air bag. Whether plaintiff’s attention was diverted for any reason, for example, was plaintiff distracted by children or other passengers, changing a radio setting, changing tapes/CD, operating a blackberry or mp3 player, or speaking on the cellular phone, etc.

3.10 Whether there was anyone or anything else in the car (e.g., passengers, animals, luggage). If so, where, and what happened to them or it?

3.11 What happened to plaintiff, including: bracing before impact; plaintiff’s impact inside the vehicle; head struck or head being thrown backwards.

3.12 Damage to all vehicles (location, type, severity).

3.13 Injuries to other parties.

3.14 Any other information about other parties (e.g., insurance).

3.15 Evidence, such as statements, sketches, available photographs, copy of police report, repair estimate.

4. AT THE SCENE OF THE ACCIDENT AND AFTERMATH

4.1 Plaintiff’s injuries, specifying location and type.

4.2 Plaintiff’s state of consciousness, including feelings of dizziness or disorientation; plaintiff’s emotional state.

4.3 Whether plaintiff realized at the time that he or she had been injured and, if so, how.

4.4 Whether any of plaintiff’s clothing or other personal property was damaged.

4.5 What plaintiff did after impact.

4.6 Full particulars of any treatment at the scene, including when given, by whom, type of treatment.

4.7 Whether police or fire department were called and, if so, details of this, their arrival, actions, and any discussions with them.

4.8 Whether ambulance was called and, if so, details of this, its arrival, what happened after that, and any discussions with attendants.

4.9 Full particulars of any conversations involved in or overheard at the scene.

4.10 Full particulars of any written statements given.

4.11 Whether plaintiff complained of any physical injuries at the time and, if so, details of this.

4.12 Whether anyone helped plaintiff from the car, plaintiff could walk unassisted, or a stretcher was used.

4.13 Whether plaintiff was treated in emergency; what treatment including:
x-rays; medication prescribed or given; length of stay in hospital before being released; name, address, and phone number of attending doctor.

4.14 Names, addresses, and telephone numbers of witnesses to the accident.

5. INJURIES SUSTAINED BY THE PLAINTIFF

5.1 Specific injuries: any pain, bruising, numbness, tingling, or clicking in ears or jaw, eyes, head, jaw, neck, shoulders, back, arms, chest, hands, fingers, toes, legs, hips, buttocks, knees, abdomen, other. Specify exact location and nature of pain, numbness, tingling, or clicking. Specify when problem began and how long it has lasted, whether constant or intermittent. Specify whether particular activities cause aggravation. Go through the injuries from head to toes, so none are omitted.

5.2 Other pain and health problems, such as: headaches, lack of concentration, memory problems, blurred vision, light sensitivity, fainting, dizziness, nausea, ringing in ears. Specify when problem began and how long it has lasted.

5.3 Need for any of the following: cane, crutches, wheelchair, orthopedic supports, trusses, back or neck brace, cervical collar, traction, other. Specify duration and frequency of use, place where used, who prescribed it.

5.4 Need for ongoing treatment including physiotherapy (see item 8). What medication has been prescribed, and what medication the plaintiff is taking.

5.5 Adverse reaction to medicine, anaesthetics, etc. Specify symptoms.

5.6 Changes in appearance, such as: limp, weight gain or loss, scars (specify size, location, whether permanent), other disfigurements.

5.7 Changes in emotional or psychological state, such as: tearful, angry, depressed, tired, happy, sleepy, nightmares, intrusive thoughts, insomniac, bored, discouraged, hopeful, afraid, need for psychological or psychiatric treatment, etc.

5.8 Whether plaintiff feels that any of the above have caused changes in appearance, dress, etc., or the way others perceive him or her (i.e., self-image).

5.9 Consider interviewing close family member or other witnesses regarding the effects of the injuries.

5.10 Obtain authorizations and request records of all medical practitioners who have treated the plaintiff. Consider request for MSP records.

6. PRACTICAL CONSEQUENCES OF INJURIES

6.1 Effect on employment:

.1 Whether plaintiff can still do same type of work.

.2 Whether plaintiff returned immediately to work. If not, why not, how much time lost, whether doctor or anyone else advised plaintiff not to return to work, loss of holiday benefits, loss of sick days, whether sick days can be accumulated and paid out.

.3 Whether short- or long-term benefits and whether insurer has subrogated right of recovery.

.4 Any adverse effect on employment, future earning capacity, long-term career plans.

.5 Whether required to take early retirement or suffered loss of seniority rights or employment benefits.

.6 Has plaintiff been accommodated at work by being assigned lesser duties?

.7 Get full particulars of income loss. Consider contingencies such as opportunities for advancement, alternative opportunities, supply and demand for skills. Also, whether doing the same work now involves extreme, moderate, slight or no pain.

.8 For a student, consider loss of or set-back in education.

.9 Discuss mitigation efforts (e.g., if plaintiff has had to seek new employment, what efforts were made and what responses were received).

.10 Consider whether less employable for all types of employment even if able to continue with same employment.

6.2 Effect on business:

.1 Whether additional employees hired to replace plaintiff, or whether business has been adversely affected (if so, why and in what way).

.2 Get full particulars of income loss; get plaintiff’s income tax returns and records, including business records relating to productivity, etc., as well as statements and books of account, accountant’s files, bank statements and cancelled cheques, plaintiff’s files including correspondence.

6.3 Effect on domestic and recreational activities:

.1 Whether plaintiff did them before the accident, frequency before, whether plaintiff can do them now and, if so, whether this involves extreme, moderate, slight or no pain. Examples are: lift heavy objects; drive automobile, truck, motorcycle; ride bicycle; work on auto; shovel snow; mow lawn; garden; kneel down, squat down; walk, jog, run, dance, do exercises; enjoy sexual relations; do home repairs, saw/chop wood, do wallpapering, paint walls/ceiling; lift children; do grocery shopping; make beds, do laundry, scrub floors, vacuum, cook, dust, sew;

use lower/higher shelves; wear high-heeled shoes; turn head to look behind when driving, put chin on chest, hold phone with shoulder, sit in bathtub with legs outstretched, sit on floor/grass/low furniture; play tennis, baseball, football, basketball, golf, etc.; hunt, fish, ride, climb mountains, etc.; snow/water ski, swim, other sports and hobbies; enjoy social life.

.2 Specify any other ways in which capacity to enjoy life has been affected. Which activities have been resumed or attempted?

.3 What vacations have been taken, delayed or cancelled?

6.4 Bear in mind any other special considerations such as the possibility of marriage and child bearing.

6.5 Expenses related to the accident, including damage to personal property, prescriptions, taxis, mileage, lost membership, etc. Obtain details of payment, whether paid by plaintiff or third party. If third party, who and on what basis.

6.6 Retraining, rehabilitation, or vocational counselling undertaken.

6.7 Obtain details of any services provided by family members or others for which the plaintiff might advance a claim and the actual cost of any such services if incurred. Determine who provided services, the number of hours spent by them, whether they had to leave a job in order to provide the services and whether these services went beyond what would be expected of a family member.

6.8 Obtain details of disability insurance plan and benefits received.

7. PLAINTIFF’S MEDICAL HISTORY

7.1 Plaintiff’s previous illnesses and conditions requiring medical treatment; attending physician; date; nature of illness and its duration. Include hospitalization, accidents, injuries, alternative health care.

7.2 Whether plaintiff has any chronic health problems.

7.3 Whether plaintiff used any medication/drugs regularly before the accident.

7.4 Whether plaintiff has ever made a previous claim for damages related to an accident or injury (in a legal action, or under Workers Compensation Act, R.S.B.C. 1996, c. 492, etc.). Get details, including outcome and consider obtaining documentation such as medical legal reports, pleadings, orders and releases.

7.5 Whether plaintiff has been a recipient of disability benefits (e.g., CPP benefits); obtain details of plan and benefits.

7.6 Whether plaintiff has ever had any insurance denied or cancelled.

7.7 Whether plaintiff believes present accident has aggravated an old injury or illness. Get details.

7.8 Whether plaintiff had physical examinations in the five years prior to the accident and, if so: date, doctor, purpose of examination.

7.9 Pre-accident clinical records from any relevant health care professionals if plaintiff has a previous history of injury.

7.10 Whether the plaintiff has had any previous psychological or psychiatric treatment for depression, anxiety, etc.

7.11 Whether there have been any intervening medical conditions or accidents in the post-accident period.

7.12 Whether plaintiff has a history of changing doctors frequently and why.

7.13 Post-accident clinical records.

8. TREATMENT OF PLAINTIFF’S INJURIES

8.1 Treating institutions: names, addresses, types of institution, dates of visits or stays, complaints.

8.2 Treating physicians, chiropractors, physiotherapists and other health care professionals giving treatment of any nature (including alternative medicine): names, addresses, specializations, dates of visits, complaints.

8.3 Diagnosis and prognosis of each person giving treatment each time plaintiff was examined.

8.4 Place and date of x-rays, MRIs, CT scans, tomographs, etc.

8.5 All medications (including alternative medications) prescribed or taken.

8.6 Future surgeries planned, future appointments set, prognosis if given.

9. POTENTIAL DEFENDANTS

9.1 Get details enabling you to identify potential defendants (e.g., consider facts that might establish vicarious liability). Consider whether province, municipality, physicians, or others might be defendants.

9.2 Get names, addresses, phone numbers, details of their insurance, if possible.

10. DAMAGES

10.1 Car: age, mileage; cost of car and improvements; condition before accident; damage; whether car can be repaired; whether car has been repaired; invoices and estimates. Consider whether issue of accelerated depreciation arises.

10.2 Damages incidental to damage to car, such as cost of renting another car while repairs are being made, and any cost of repair not covered by insurance (e.g., insurance deductible).

10.3 Damage to other property, such as clothing and contents of car.

10.4 Medical expenses.

10.5 Other damages incidental to personal injury, such as economic loss and loss of enjoyment of life (see item 6).

10.6 Obtain receipts for all expenses.

11. OTHER CHARGES AND CLAIMS

11.1 Whether criminal or quasi-criminal charges have been laid against any of the parties. If so, obtain copies of police file and trial transcripts.

11.2 Whether an ICBC claim has been filed and, if so, identify claims centre, claim number, and adjuster. Whether any benefits under Part 7 of the Revised Regulation Under the Insurance (Vehicle) Act, claimed and/or received. What documents given to or signed for ICBC, and any advances paid.

11.3 Whether there is a WCB claim (if accident arose out of and in the course of employment: Workers Compensation Act, ss. 5 and 10).

11.4 Whether obligation to repay or make claim for the benefit of an employer or insurer (i.e., a subrogated claim), short- or long-term benefits.

11.5 Obtain copies of any documents relating to ICBC claims, Part 7 benefits, WCB records, etc.

11.6 If there were previous accidents or WCB claims, obtain pleadings for any claims commenced and copies of any settlement documents including orders or releases.

12. CREDIBILITY

12.1 In proceeding through the interview/examination for discovery, it is important to assess your client/opposing party as a witness. This may be as simple as considering whether the person appears honest, but also may include whether the witness makes a good impression, is verbose or reticent, is nervous, is argumentative, is a poor historian, etc.

12.2 Consider what steps will be required to prepare your own client, including a mock examination, discussion of behaviours, etc.

12.3 In preparing to examine an opposing party, consider the most effective approach to be taken. For example, you may start with general questions and then narrow to the specific. You may also consider if and when to confront the witness with documents such as medical records or income tax returns.

Do you have questions about an ICBC Injury Claim or examinations for discovery? Do you need legal advice from an ICBC claims lawyer? If so click here for your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided throughout BC!)

Court "Costs" and Your ICBC Injury Claim

Written by admin on June 11, 2008. Posted in Uncategorized.

Reasons for judgment were released by the BC Supreme Court yesterday awarding a Plaintiff in a BC personal injury claim “costs” despite the fact that the Plaintiff’s award was within the small claims court jurisdiction.
This case gave me a good opportunity to write a little bit about the “costs’ consequences of bringing ICBC claims to trial and I intend to make this the first of several blog entries on this topic.
If you make an ICBC claim in BC Supreme Court and win (winning meaning you obtain a judgment in your favour greater than an ICBC formal settlement offer) you are generally entitled to ‘costs’ in addition to your award of damages.
For example, if a plaintiff with soft tissue injuries brings an ICBC claim to trial and is awarded $30,000 and ICBC’s formal settlement offer was $10,000, the Plaintiff would be entitled to “Costs” in addition to the $30,000 (barring any unusual developments at trial).
The purpose of awarding the winner Costs is to compensate them for having to go through the formal court process to get what is fair. This recognzes the fact that there are legal fees involved in bringing most ICBC claims to trial and one of the purposes of Costs is to off-set these to an extent.
Costs cover 2 different items, the first being disbursements (meaning the actual out of pocket costs of preparing a lawsuit for trial such as court filing fees and doctor’s fees in preparing medical reports) and the second being Tarriff costs – meaning compensation for many of the acutal steps in bringing a lawsuit in BC Supreme Court.
The Costs consequences after a BC Supreme Court Trial could easily be in the tens of thousands of dollars and this is often the case in many ICBC claims.
Costs are discussed in Rule 57 of the BC Supreme Court Rules and this rule is worth reviewing for anyone bringing an ICBC claim to trial in the BC Supreme Court. The winner does not always get their costs, however. One of the situations when a winner may not get their costs is when they are awarded an amount of money that was in the small claims court jurisdiction ($25,000 or less).
Rule 57(10) states that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.”
As a result of this sub-rule, people who bring an ICBC claim to trial in BC Supreme Court and are awarded less than $25,000, may be disentitled to their Tariff Costs unless they can show ‘sufficient reason for bringing the proceeding in the Supreme Court.”
In this weeks judgement the court agreed that despite the fact that the Plaintiff was awarded $12,290 in damages (an award well within the small claims court jurisdiction), the Plaintiff did have sufficient reason to bring the proceedings in Supreme Court.
In reaching this decision the court referred to a leading BC Court of Appeal Case where it was held that “a Plaintiff does not have an on-going obligation to assess the quantum (value) of a claim and that the point in time for a consideration of whether a plaintiff had a sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
The lawyer for the Plaintiff argued that when the lawsuit was started they were not in a position to finalize their valuation of this claim becase they did nothave a final medical report commenting on the plaintiff’s injuries. Also that since the Defendant took an LVI (low velocity impact) position it was important to sue in Supreme Court to have an examination for discovery of the Defendant (a procedure not available in small claims court).
For those and other reasons the court agreed and awarded the Plaintiff her Tariff Costs.
Do you have questions about an ICBC Claim, or BC Court Costs that you wish to discuss with an ICBC claims lawyer? If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken.

INTRODUCTION Purpose and currency of checklist. The checklist should only be used as a guideline as the nature and scope of the interview and the examination for discovery in each case are matters for your own professional judgment. Some of what follows may be appropriate for an interview but would be objectionable on an examination for discovery (e.g., prior driving record). The interview may be wide-ranging and directed to information gathering. The examination for discovery is a cross-examination and must be relevant to the pleadings. The general framework of this checklist is relevant to most personal injury litigation; however, parts are oriented particularly toward motor vehicle accident litigation. If you use this checklist for other types of personal injury litigation, you will need to modify items 1.6 through 4.14. New developments: ·1 Client Identification. New Law Society Rules regarding Client Identification and Verification are expected to come into effect on November 1, 2008. These new “know-your-client” Rules, generally based on the Federation of Law Societies of Canada Model Rule (http://www.flsc.ca/), represent a continuation of the legal profession’s initiatives against money laundering. All Canadian law societies are expected to adopt similar Rules in 2008. Additional resources. See also Introducing Evidence at Trial: A British Columbia Handbook (CLEBC, 2007); Discovery Practice in British Columbia, 2nd ed., looseleaf (CLEBC, 2004); British Columbia Motor Vehicle Accident Claims Practice Manual, 2nd ed., looseleaf (CLEBC, 2000); British Columbia Civil Trial Handbook, 2nd ed. (CLEBC, 2005); Personal Injury for Legal Support Staff —2006 Update (CLEBC, 2006); Personal Injury for Legal Support Staff (CLEBC, 2003); Personal Injury Conference—2005 (CLEBC, 2005); Defending Personal Injury (CLEBC, 2006); and Personal Injury: Advanced Issues (CLEBC, 2004).
CONTENTS
1. The Plaintiff—Personal Information 2. The Car 3. The Accident 4. At the Scene of the Accident 5. Injuries Sustained by the Plaintiff 6. Practical Consequences of Injuries 7. Plaintiff’s Medical History 8. Treatment of Plaintiff’s Injuries 9. Potential Defendants 10. Damages 11. Other Charges and Claims
CHECKLIST
1. THE PLAINTIFF—PERSONAL INFORMATION
1.1 Name, address, phone numbers, e-mail address, occupation, employer or school, social insurance number.
1.2 Personal history: birth date and place, height, weight, marital status, date and place of marriage, spouse, parents, children, dependents, previous residences for last 10 years, education, medical coverage.
1.3 Whether spouse is employed and, if so, the details.
1.4 Employment history: name, address and phone number of current employer, job title and duties, length of employment with that employer, name of immediate supervisor, remuneration (full history), hours regularly worked (and overtime), typical duties and responsibilities, future prospects, benefits (medical and dental plans, life insurance, pension, paid vacation, employer’s contribution to employment insurance (“EI”), free board and lodging, investment options, company car, union or Workers’ Compensation Board (“WCB”) involvement, paid sick leave, etc.); same details regarding previous employment, including why plaintiff left. Obtain details of any WCB claims or periods of sick leave. Request appropriate employment documents and authorizations. Obtain the name of the union and a copy of the collective agreement to determine validity of a claim for collateral benefits or other employment benefits. Obtain particulars and a copy of policy for any disability insurance for the same reasons.
1.5 Insurance coverage: company, claim number, name of adjuster, type of insurance, any statement made by plaintiff.
1.6 Driver’s licence: class, how long plaintiff has had it, any restrictions (and, if so, whether they were complied with), whether licence has been suspended for any reason in the past, prior convictions.
1.7 Whether plaintiff is an experienced driver and whether plaintiff has previously been involved in any accident.
2. THE CAR
2.1 Owner. If plaintiff was driver but not the owner, how did plaintiff come to be driving the car? Insurance details of vehicle owner.
2.2 Type of car: year, make, standard or automatic, licence number.
2.3 General mechanical condition and details regarding condition of brakes, steering, tires and, where relevant, head and tail lights, signal lights, horn, windshield, windows etc., including when they were last checked, and whether there have been any previous problems.
3. THE ACCIDENT
3.1 Date, time, location.
3.2 Plaintiff’s pre-accident condition (e.g., illness or disability affecting driving, alcohol or drug consumption, physical condition, whether tired or distracted, last sleep, day’s activities).
3.3 Further details about vehicles and parties involved, such as: names, addresses and phone numbers of drivers, owners, passengers, pedestrians, witnesses; types and conditions of other vehicles. Details of other driver’s insurance.
3.4 Road, traffic, and weather conditions, such as: time of day; lighting and visibility; position of sun; road condition; characteristics of accident location (e.g., width of road, number of lanes, straight or curved, center marking, intersections, traffic controls, pedestrian crossing areas, parked cars, any obstructions to vision).
3.5 Whether headlights, windshield wipers, heater, defroster, or radio were on; whether windshield was clear; whether sunvisor was being used; whether plaintiff was wearing sunglasses.
3.6 Whether plaintiff was wearing glasses and, if so, whether this was required under driver’s licence, and when prescription was last checked.
3.7 Whether plaintiff was wearing a seat belt. If so, type and was it snugly fastened? If not wearing a belt, consider information defendant may use for seat belt defence expert opinion (height, weight, body shape, torso length, clothing, type of belt). Whether there was a headrest. If so, was it adjusted for the plaintiff’s height?
3.8 Where plaintiff was going; point and time of departure; destination; route; familiarity with route and location; purpose of travel; whether working; whether in a hurry.
3.9 Details about the accident, such as: location and direction of travel of each party involved; speed at which each was travelling before accident and whether there was any slowing down or acceleration; when other vehicle was first seen; any opportunity for evasive action by either vehicle and, if so, whether it was taken; elapsed time between sight and impact; movement of other vehicle during this time; point of impact; how far vehicles travelled after impact; skid marks; location of damage to vehicles; damage to interior of plaintiff’s vehicle; deployment of air bag. Whether plaintiff’s attention was diverted for any reason, for example, was plaintiff distracted by children or other passengers, changing a radio setting, changing tapes/CD, operating a blackberry or mp3 player, or speaking on the cellular phone, etc.
3.10 Whether there was anyone or anything else in the car (e.g., passengers, animals, luggage). If so, where, and what happened to them or it?
3.11 What happened to plaintiff, including: bracing before impact; plaintiff’s impact inside the vehicle; head struck or head being thrown backwards.
3.12 Damage to all vehicles (location, type, severity).
3.13 Injuries to other parties.
3.14 Any other information about other parties (e.g., insurance).
3.15 Evidence, such as statements, sketches, available photographs, copy of police report, repair estimate.
4. AT THE SCENE OF THE ACCIDENT AND AFTERMATH
4.1 Plaintiff’s injuries, specifying location and type.
4.2 Plaintiff’s state of consciousness, including feelings of dizziness or disorientation; plaintiff’s emotional state.
4.3 Whether plaintiff realized at the time that he or she had been injured and, if so, how.
4.4 Whether any of plaintiff’s clothing or other personal property was damaged.
4.5 What plaintiff did after impact.
4.6 Full particulars of any treatment at the scene, including when given, by whom, type of treatment.
4.7 Whether police or fire department were called and, if so, details of this, their arrival, actions, and any discussions with them.
4.8 Whether ambulance was called and, if so, details of this, its arrival, what happened after that, and any discussions with attendants.
4.9 Full particulars of any conversations involved in or overheard at the scene.
4.10 Full particulars of any written statements given.
4.11 Whether plaintiff complained of any physical injuries at the time and, if so, details of this.
4.12 Whether anyone helped plaintiff from the car, plaintiff could walk unassisted, or a stretcher was used.
4.13 Whether plaintiff was treated in emergency; what treatment including: x-rays; medication prescribed or given; length of stay in hospital before being released; name, address, and phone number of attending doctor.
4.14 Names, addresses, and telephone numbers of witnesses to the accident.
5. INJURIES SUSTAINED BY THE PLAINTIFF
5.1 Specific injuries: any pain, bruising, numbness, tingling, or clicking in ears or jaw, eyes, head, jaw, neck, shoulders, back, arms, chest, hands, fingers, toes, legs, hips, buttocks, knees, abdomen, other. Specify exact location and nature of pain, numbness, tingling, or clicking. Specify when problem began and how long it has lasted, whether constant or intermittent. Specify whether particular activities cause aggravation. Go through the injuries from head to toes, so none are omitted.
5.2 Other pain and health problems, such as: headaches, lack of concentration, memory problems, blurred vision, light sensitivity, fainting, dizziness, nausea, ringing in ears. Specify when problem began and how long it has lasted.
5.3 Need for any of the following: cane, crutches, wheelchair, orthopedic supports, trusses, back or neck brace, cervical collar, traction, other. Specify duration and frequency of use, place where used, who prescribed it.
5.4 Need for ongoing treatment including physiotherapy (see item 8). What medication has been prescribed, and what medication the plaintiff is taking.
5.5 Adverse reaction to medicine, anaesthetics, etc. Specify symptoms.
5.6 Changes in appearance, such as: limp, weight gain or loss, scars (specify size, location, whether permanent), other disfigurements.
5.7 Changes in emotional or psychological state, such as: tearful, angry, depressed, tired, happy, sleepy, nightmares, intrusive thoughts, insomniac, bored, discouraged, hopeful, afraid, need for psychological or psychiatric treatment, etc.
5.8 Whether plaintiff feels that any of the above have caused changes in appearance, dress, etc., or the way others perceive him or her (i.e., self-image).
5.9 Consider interviewing close family member or other witnesses regarding the effects of the injuries.
5.10 Obtain authorizations and request records of all medical practitioners who have treated the plaintiff. Consider request for MSP records.
6. PRACTICAL CONSEQUENCES OF INJURIES
6.1 Effect on employment:
.1 Whether plaintiff can still do same type of work.
.2 Whether plaintiff returned immediately to work. If not, why not, how much time lost, whether doctor or anyone else advised plaintiff not to return to work, loss of holiday benefits, loss of sick days, whether sick days can be accumulated and paid out.
.3 Whether short- or long-term benefits and whether insurer has subrogated right of recovery.
.4 Any adverse effect on employment, future earning capacity, long-term career plans.
.5 Whether required to take early retirement or suffered loss of seniority rights or employment benefits.
.6 Has plaintiff been accommodated at work by being assigned lesser duties?
.7 Get full particulars of income loss. Consider contingencies such as opportunities for advancement, alternative opportunities, supply and demand for skills. Also, whether doing the same work now involves extreme, moderate, slight or no pain.
.8 For a student, consider loss of or set-back in education.
.9 Discuss mitigation efforts (e.g., if plaintiff has had to seek new employment, what efforts were made and what responses were received).
.10 Consider whether less employable for all types of employment even if able to continue with same employment.
6.2 Effect on business:
.1 Whether additional employees hired to replace plaintiff, or whether business has been adversely affected (if so, why and in what way).
.2 Get full particulars of income loss; get plaintiff’s income tax returns and records, including business records relating to productivity, etc., as well as statements and books of account, accountant’s files, bank statements and cancelled cheques, plaintiff’s files including correspondence.
6.3 Effect on domestic and recreational activities:
.1 Whether plaintiff did them before the accident, frequency before, whether plaintiff can do them now and, if so, whether this involves extreme, moderate, slight or no pain. Examples are: lift heavy objects; drive automobile, truck, motorcycle; ride bicycle; work on auto; shovel snow; mow lawn; garden; kneel down, squat down; walk, jog, run, dance, do exercises; enjoy sexual relations; do home repairs, saw/chop wood, do wallpapering, paint walls/ceiling; lift children; do grocery shopping; make beds, do laundry, scrub floors, vacuum, cook, dust, sew;
use lower/higher shelves; wear high-heeled shoes; turn head to look behind when driving, put chin on chest, hold phone with shoulder, sit in bathtub with legs outstretched, sit on floor/grass/low furniture; play tennis, baseball, football, basketball, golf, etc.; hunt, fish, ride, climb mountains, etc.; snow/water ski, swim, other sports and hobbies; enjoy social life.
.2 Specify any other ways in which capacity to enjoy life has been affected. Which activities have been resumed or attempted?
.3 What vacations have been taken, delayed or cancelled?
6.4 Bear in mind any other special considerations such as the possibility of marriage and child bearing.
6.5 Expenses related to the accident, including damage to personal property, prescriptions, taxis, mileage, lost membership, etc. Obtain details of payment, whether paid by plaintiff or third party. If third party, who and on what basis.
6.6 Retraining, rehabilitation, or vocational counselling undertaken.
6.7 Obtain details of any services provided by family members or others for which the plaintiff might advance a claim and the actual cost of any such services if incurred. Determine who provided services, the number of hours spent by them, whether they had to leave a job in order to provide the services and whether these services went beyond what would be expected of a family member.
6.8 Obtain details of disability insurance plan and benefits received.
7. PLAINTIFF’S MEDICAL HISTORY
7.1 Plaintiff’s previous illnesses and conditions requiring medical treatment; attending physician; date; nature of illness and its duration. Include hospitalization, accidents, injuries, alternative health care.
7.2 Whether plaintiff has any chronic health problems.
7.3 Whether plaintiff used any medication/drugs regularly before the accident.
7.4 Whether plaintiff has ever made a previous claim for damages related to an accident or injury (in a legal action, or under Workers Compensation Act, R.S.B.C. 1996, c. 492, etc.). Get details, including outcome and consider obtaining documentation such as medical legal reports, pleadings, orders and releases.
7.5 Whether plaintiff has been a recipient of disability benefits (e.g., CPP benefits); obtain details of plan and benefits.
7.6 Whether plaintiff has ever had any insurance denied or cancelled.
7.7 Whether plaintiff believes present accident has aggravated an old injury or illness. Get details.
7.8 Whether plaintiff had physical examinations in the five years prior to the accident and, if so: date, doctor, purpose of examination.
7.9 Pre-accident clinical records from any relevant health care professionals if plaintiff has a previous history of injury.
7.10 Whether the plaintiff has had any previous psychological or psychiatric treatment for depression, anxiety, etc.
7.11 Whether there have been any intervening medical conditions or accidents in the post-accident period.
7.12 Whether plaintiff has a history of changing doctors frequently and why.
7.13 Post-accident clinical records.
8. TREATMENT OF PLAINTIFF’S INJURIES
8.1 Treating institutions: names, addresses, types of institution, dates of visits or stays, complaints.
8.2 Treating physicians, chiropractors, physiotherapists and other health care professionals giving treatment of any nature (including alternative medicine): names, addresses, specializations, dates of visits, complaints.
8.3 Diagnosis and prognosis of each person giving treatment each time plaintiff was examined.
8.4 Place and date of x-rays, MRIs, CT scans, tomographs, etc.
8.5 All medications (including alternative medications) prescribed or taken.
8.6 Future surgeries planned, future appointments set, prognosis if given.
9. POTENTIAL DEFENDANTS
9.1 Get details enabling you to identify potential defendants (e.g., consider facts that might establish vicarious liability). Consider whether province, municipality, physicians, or others might be defendants.
9.2 Get names, addresses, phone numbers, details of their insurance, if possible.
10. DAMAGES
10.1 Car: age, mileage; cost of car and improvements; condition before accident; damage; whether car can be repaired; whether car has been repaired; invoices and estimates. Consider whether issue of accelerated depreciation arises.
10.2 Damages incidental to damage to car, such as cost of renting another car while repairs are being made, and any cost of repair not covered by insurance (e.g., insurance deductible).
10.3 Damage to other property, such as clothing and contents of car.
10.4 Medical expenses.
10.5 Other damages incidental to personal injury, such as economic loss and loss of enjoyment of life (see item 6).
10.6 Obtain receipts for all expenses.
11. OTHER CHARGES AND CLAIMS
11.1 Whether criminal or quasi-criminal charges have been laid against any of the parties. If so, obtain copies of police file and trial transcripts.
11.2 Whether an ICBC claim has been filed and, if so, identify claims centre, claim number, and adjuster. Whether any benefits under Part 7 of the Revised Regulation Under the Insurance (Vehicle) Act, claimed and/or received. What documents given to or signed for ICBC, and any advances paid.
11.3 Whether there is a WCB claim (if accident arose out of and in the course of employment: Workers Compensation Act, ss. 5 and 10).
11.4 Whether obligation to repay or make claim for the benefit of an employer or insurer (i.e., a subrogated claim), short- or long-term benefits.
11.5 Obtain copies of any documents relating to ICBC claims, Part 7 benefits, WCB records, etc.
11.6 If there were previous accidents or WCB claims, obtain pleadings for any claims commenced and copies of any settlement documents including orders or releases.
12. CREDIBILITY
12.1 In proceeding through the interview/examination for discovery, it is important to assess your client/opposing party as a witness. This may be as simple as considering whether the person appears honest, but also may include whether the witness makes a good impression, is verbose or reticent, is nervous, is argumentative, is a poor historian, etc.
12.2 Consider what steps will be required to prepare your own client, including a mock examination, discussion of behaviours, etc. 12.3 In preparing to examine an opposing party, consider the most effective approach to be taken. For example, you may start with general questions and then narrow to the specific. You may also consider if and when to confront the witness with documents such as medical records or income tax returns.