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More on Settlement Offers and Rule 37B

Written by admin on . Posted in Civil Procedure. 73 Comments on More on Settlement Offers and Rule 37B

Reasons for judgement were released today refusing to award the successful litigant double costs pursuant to Rule 37B.
The Petitioner City sued the Respondent Kennel operator seeking a declaration that the Kennel was in breach of a Bylaw and seeking conjunctive orders.  Before trial (and before Rule 37 was replaced with Rule 37B) the Respondent offered to settle on the following terms ‘this proceeding on the basis that the Petitioner’s claim be dismissed and costs in accordance with Rule 37‘
The offer was delivered less than 7 days before the trial commenced.   The claim was dismissed at trial.
The Respondents asked that the City pay them Double Costs.  Madam Justice Loo refused to order double costs noting that the formal offer of settlement conferred no benefit to the Respondents aside from costs.  The key reasons are set out at paragraph 13-15 which hold as follows:

[13]            The Court of Appeal in a number of cases has stated that the purpose of the double costs provisions of Rule 37 is to encourage early and reasonable settlements of disputes and discourage frivolous litigation:  Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330, 2 B.C.L.R. (3d) 201 (C.A.) at para. 28; Vukelic v. Canada (1997), 37 B.C.L.R. (3d) 217 at paras. 9 to 13, 94 B.C.A.C. 147; Mackenzie v. Brooks, 1999 BCCA 623 at para. 24 (sub nom. Mackenzie v. Brooks et al.), 130 B.C.A.C. 95.

[14]            Although Rule 37 is no longer in force, I find these statements of principle helpful in view of the express language of Rule 37B(4).

[15]            The petitioner’s claim was not frivolous and it was not a claim that was bound to fail.  The offer to settle conferred no benefit on the petitioner aside from costs and conferred virtually no benefit to those who complained about the noise of the barking dogs.

This is the second case that I’m aware of in Rule 37-B’s short history which refuses to award double costs to a litigant who made what can be characterized as a nuisance value offer.  It appears that if a claim is not frivolous and is not bound to fail, double costs might not be granted when the claim does indeed fail at trial if the formal settlement offer conveys ‘no benefit aside from costs’ to the litigant.
If you are proceeding to trial in an ICBC claim or are considering an ICBC settlement offer cases such as this one are worth reviewing.  I will continue to post about Rule 37B cases as they come to my attention.

ICBC Claims and Treating Physicians

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

In reasons for judgement released today Mr. Justice Holmes awarded an injured Plaintiff a total of $8,500 in damages as a result of injuries sustained in a 2005 BC car accident that occurred in 100 Mile House.
The Plaintiff was a passenger at the time.  His wife was driving.  The vehicle left the roadway and rolled onto its roof.  Liability for the accident was admitted by ICBC but the issue of damages was contested.
The Plaintiff led medical evidence that he suffered from ‘mechanical lower back pain’ amongst other injuries as a result of this crash.  He advanced a ‘significant claim of loss of earning capacity’.
The cause of the Plaintiff’s back pain was at issue at trial.  The court largely rejected the Plaintiff’s claim and found that the Plaintiff had pre-existing back pain which was exacerbated as a result of the collision.   The court found that the Plaintiff’s exacerbation ‘either resolved or significantly diminished within a few months of the accident.  The Plaintiff’s more serious complaints of back pain and spasm did not occur until months later…‘ 
The court summarized its findings at paragraph 48 as follows:
[48]            I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005.  That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident.  He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility.  Treatment was by continuing chiropractic and exercise.  He was able to perform his work and operate his business with minimal interference.  I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.
The Plaintiff did not call his treating chiropractor and his family physician to give evidence.  The court was critical of this and it appears that this was a main factor which fueled the court’s decision.  The court highlighted this fact as follows:

[37]            I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38]            Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action.  Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39]            I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005.  I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

If you are advancing and ICBC claim and have pre-existing injuries it is a good idea to consider calling your treating doctor to give evidence to explain your pre and post accident status to the court.  Failing to do so may result in an ‘adverse inference’ where the court may conclude that your treating doctor would have given evidence damaging to your case.

Appeal of $70,000 Soft Tissue Injury Claim Dismissed

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 55 Comments on Appeal of $70,000 Soft Tissue Injury Claim Dismissed

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome.  The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome.  In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million.  Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.  The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal.  In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a)  Confronting the Plaintiff

[33]            The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties.  The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70).  The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34]            The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges.  This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada.  In this country, we have an adversarial system, not an inquisitorial one.

[35]            Such a rule would be unworkable with respect to judges in our system.  Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses.  They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36]            The rule in Browne v. Dunn is not suited for application to judges.  The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation.  What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible.  That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37]            In addition, the rule in Browne v. Dunn has not been treated as an absolute rule.  Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence.  This feature of the rule is not adaptable to judges.

[38]            The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations.  The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14).  In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case.  It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25).  Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

 

ICBC Claims and Credibility

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

Interesting reasons for judgement were handed down today following a 2 day trial in Vancouver.
The Plaintiff was a passenger on a bus.  The bus was involved in a collision in 2005.  Fault for the accident was admitted by the negligent motorist.  Upon impact the Plaintiff apparently ‘fell from his seat behind the driver of the bus onto the floor, allegedly injuring his hips and shoulder’.
In most ICBC claims the credibility of the injured party is of great imporatance.  In this case the Plaintiff’s credibiilty was closely scrutinized.  In the course of advancing his ICBC claim he gave false information to ICBC contrary to s. 42.1(2)(a) of the Insurance (Motor Vehicle) Act.  He was charged for this, plead guilty and was fined.
The Plaintiff admitted that he had lied to various persons including officials from ICBC, to his family doctor and to his phyisiotherpist.  During his examination for discovery the Plaintiff admitted to lying at least 6 times.
Notwithstanding all of this, the court found that the Plaintiff suffered a shoulder injury in the bus accident.  MR. Justice made the following findings:
[39] In light of the history of this claim, Gabrilo’s admitted lies, and conviction for those lies, I accept that the evidence concerning the present claim must be carefully, if not scrupulously, examined.  On balance, however, I accept that Gabrilo hurt his shoulder in the Accident.  ….
[46] In summary, the Plaintiff is entitled to damages arising from the Accident.  I am satisfied that the claim arising from his shoulder injury is one that, in the ordinary course of events, would likely have resolved by trial.  While he may have ongoing symptoms, it has not been shown that these symptoms were caused by the original Accident.  Thus, in my view, he is entitled to damages based only on a claim where the symptoms would have resolved by trial.
The court awarded $13,000 for the Plaintiff’s non-pecuniary damages.
This case is worth reading for anyone interested in how issues of credibility come into play when advancing an ICBC claim.

ICBC Claims and Trial Splitting

Written by admin on . Posted in Civil Procedure, Uncategorized. 98 Comments on ICBC Claims and Trial Splitting

ICBC claims can be very expensive to bring to trial. Typically, most of the expenses are associated with the cost of presenting medical opinion evidence. Medical opinion evidence is often required to prove that injuries are caused by an accident, to discuss reasonable treatments (addressing special damages), and to address the specific diagnosis and prognosis of car accident related injuries. Such opinions can cost thousands of dollars to obtain and thousands more to present in court.
What if you have a case that is very risky? What if the trial outcome of ‘who is at fault’ is uncertain and should you lose on that issue you don’t want to be stuck with thousands of dollars of expenses for expert witness fees? Can you do anything about it? As with many areas of the law, the answer is sometimes.
Rule 39(29) of the BC Supreme Court Rules deals with splitting the issues at trial. In an ICBC claim, it is possible to use this rule to ask a court to let the liability (fault) part of a trial run first prior to the quantum part (the part that deals with the value of the ICBC claim).
Specifically, Rule 39(29) states that:
The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
If the court allows an order splitting liability and quantum, and if you lose your ICBC claim at trial on the issue of liability, that could potentially save you tens of thousands of dollars by having the case dismissed prior to presenting all of your medical evidence.
Reasons for judgement were released today where the Honourable Madam Justice Allan refused to sever the issues of quantum and fault.
In paragraphs 11-15 her Ladyship summarizes some of the principles court’s consider when reviewing such an application. I set out these paragraphs below:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[13] Mr. McGivern relies heavily on Vaughn v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.

[14] With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.

[15] In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.

Rule 39(29) is worth reviewing for anyone advancing an ICBC claim where the issue of fault is uncertain to see if time and expense can be saved by severing the issues of fault and quantum.

The Civil Consequences – ICBC and Drunk Drivers

Written by admin on . Posted in Uncategorized. 59 Comments on The Civil Consequences – ICBC and Drunk Drivers

As a BC personal injury lawyer that started out my career in criminal defence work I have seen both the civil and criminal consequences of drunk driving. Most people know about the criminal consequences but the civil consequences can be much worse.
If you are convicted of impaired driving, you will lose your license for some time, you will have a criminal record, you may even spend a little time in jail. When all is done you pick your life up and carry on. The civil consequences, on the other hand, are not always so easy to get away from.
Imagine these facts: You drive drunk. You hit another car and are at fault. Both cars are totaled. You are injured. The other driver is injured. What can the civil consequences be?
You will be in breach of your ICBC insurance. ICBC will not cover your medical expenses. ICBC will not pay for your lost wages. ICBC will not fix your car. ICBC pays off the other driver’s vehicle damage claim (let’s say $20,000). The other driver’s injury claim gets settled, lets say for $100,000. Now ICBC will come after you for the extent of the other drivers claims, $120,000 in this example.
Where does this leave you
1. No car (maybe still making car payments on a totaled car)
2. Injuries with mounting medical and rehabilitation debts
3. Lost wages
4. A massive debt to ICBC. Don’t feel like paying? Good luck having your insurance and driver’s license renewed. Thinking of driving on your suspended license? Say hi to your criminal lawyer when he visits you in jail.
The civil consequences can be a lot worse for impaired driving in BC than the criminal consequences. These can include a debt so great that it will take a lifetime to pay off. There are countless sound reasons not to drive drunk and the civil consequences of impaired driving will hit you hardest in pocket book.

$20,000 Awarded for Lingering Whiplash Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 1 Comment on $20,000 Awarded for Lingering Whiplash Injury

Reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car crash.
It was a rear-end accident. The Plaintiff was a passenger. In such cases fault is rarely at issue and here the ICBC defence lawyers admitted fault on behalf of the Defendant. The trial dealt only with the issue of quantum of damages (how much the injuries are worth).
The accident caused the Plaintiff to miss 2 weeks from work. When she returned her physical duties at work were somewhat limited. She took 14 physiotherapy sessions and saw her family physician several times after the accident.
The court’s relevant finding as to the extent of injury can be found at paragraph 64 of the judgement where the court held that:
[64] The evidence indicates to me that the plaintiff had an initial soft tissue injury to her neck and upper back and she substantially recovered approximately five months after the injuries, although the injuries to her upper back and shoulder area have lingered on to the point where Dr. Yong says they may last another one or two years.
$20,000 was awarded for the Plaintiff’s pain and suffering. No other damages were awarded although a claim for ‘loss of earning capacity’ was advanced.
As is often the case in ICBC claims that proceed to trial, here the defence lawyer argued that the Plaintiff’s award should be reduced for ‘failure to mitigate’. What this means is that if a person unreasonably fails to follow medical advice and following such advice would have made a difference the amount of compensation awarded can be reduced.
Mr. Justice Truscott refused to reduce the Plaintiff’s damages even though the evidence established that she ‘did not do all of her home exercises and id not take physiotherapy when she had asked for it‘.
Why was this evidence not good enough to reduce the Plaintiff’s damages? Because there was no medical evidence that had the Plaintiff followed this course of treatment that her injuries would have recovered any better than they had.  This case is a good example of the fact that the defence has the burden of proof when arguing ‘failure to mitigate‘ in an ICBC claim and that expert medical evidence should be tendered to discharge this burden when addressing the effects of a rehabilitation program.

Another ICBC LVI Trial, Another Award for Pain and Suffering

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

After a summary trial on June 23, 2008 pursuant to Rule 18-A (a rule that lets certain cases proceed to trial using affidavit’s as evidence instead of requiring the parties and witnesses to testify in person in court) reasons for judgement were released today awarding a Plaintiff $12,250.10 in compensation as a result of a 2005 Vancouver car crash.
This is another LVI case. The Plaintiff’s 1995 Honda Civic was rear-ended by a Ford F150 pickup truck. It was apparent that ‘this was a low impact collision’.
Many BC residents have received letters from ICBC telling them their claim has been denied based on ICBC’s LVI policy often referred to as ‘no-crash no cash’.
As is often the case, here the claim was brought to trial and the court recognized that an injury occurred despite the absence of significant vehicle damage. In reaching this conclusion Mr. Justice Williams made some useful comments about LVI crashes, specifically:

[18] This was undoubtedly a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is her self-report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces were greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

The court went on to find that the Plaintiff suffered injuries as follows:
[21] I find that the plaintiff is an honest witness and accept her evidence of the event and its consequences. On all the evidence, I conclude that the plaintiff was injured in the collision and that she experienced moderate discomfort in the first two or three months following the accident. With the passage of time, she made a steady and gradual recovery, although there was some ongoing but lessening discomfort over the following months. Fortunately for her, the degree of pain was not especially great, although it undoubtedly detracted from her everyday comfort and full enjoyment of life. To some degree, she experienced frustration and impatience with the way she felt. There is a paucity of evidence with respect to details of disruptions or difficulties that the injuries caused in her day to day routine.
$9,000 was awarded for pain and suffering, $2,031 for lost wages when she took time off work ‘to enable her to recover from her injuries’ and $1,219.10 in special damages (accident related out of pocket expenses).

$75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 50 Comments on $75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

OK, I’m back in Kelowna, but this time more for pleasure than business, so this case summary will be a little light on the usual details.
Reasons for judgement were relesed today finding a motorist at fault for a 2003 impact with a cyclist. The Plaintiff suffered serious injuries and was awarded close to $500,000 in compensation for his losses and injuries.
In this case the cyclist was travelling on the side-walk. This is prohibited in law but simply violating the motor vehicle act does not automatically make one negligent for an accident. In this case the court found that while the cyclist was unlawfully riding on the sidewalk, he was not responsible for the accident because this did not cause the accident, rather
“the accident was caused by (the Defendant) either failing to stop his vehicle before driving across the sidewalk in accordance with s. 176(1) of the Act, or by failing to look to his right before starting motion after looking away for a period of time during which a person could have appeared to the right of his vehicle.”
Here the court found that the Plaintiff was a credible witness that did not exaggerate his symptoms. The injuries were summarized by the Plaintiff’s treating family physician as follows:
fracture of the distal tibia, laceration of his scalp, laceration of his left shin, post-traumatic periostitis of the left shin, a partial tear of his anterior tibiofubular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa in the ankle/heel area).
In other words, a very serious ankle injury.  Evidence was also led that the Plaintiff suffered from a Mild Traumatic Brain Injury (MTBI) and that this resulted in some on-going cognitive problems.
The Plaintiff was a young man who suffered from a significant period of disability and there was evidence of some permanent partial disability.
Damages were assessed as follows:

a. Cost of future care: $73,078.00

b. Lost wages: $185,684.40 less the amount actually earned by the Plaintiff from December 3, 2003 to the date of trial;

c. Loss of future wages: $72,526.40.

d. Loss of earning capacity: $80,000.00

e. Non-pecuniary damages: $75,000.00

f. Special damages: $2,811.45.

g. In-trust claim: $14,040.00

Chronic Pain Syndrome and Fractured Spine Net $60,000 for Pain and Suffering

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

In a judgement released today a total of $81,694 was awarded in compensation as a result of a 2004 ‘chain rear end’ accident in BC.
The accident involved mutliple vehicles and the force of the crash was enough to write off the Plaintiff’s car. Fault was admitted by ICBC leaving only quantum of damages at issue.
As a result of crash the court found that the Plaintiff suffered from a fracture at T12 and a disc injury to T11 / T12 and perhaps T9 / T10 (basically fractures to the mid back) and that the Plaintiff ‘has gone on to develop a chronic pain syndrome with discomfort, sleep disturbance and depression.
The court went on to award $60,000 for pain and suffering, $20,000 for Loss of Earning Capacity and just over $1,000 in special damages (out of pocket expenses as a result of the accident.)
This case is worth reading for the judge’s discussion of credibility. When people complain of ‘chronic pain’ in an ICBC claim their credibility is always at issue. The reason is obvious, pain cannot be measured objectively. People can only describe their pain and a judge or jury can believe this descrpiton or reject it. In this case the judge had problems with the Plaintiff’s credibility but accepted that her chronic pain syndrome was legitimate.
More interesting is the judge’s comments on the credibility of the expert witnesses that testified. In this case ICBC, on behalf of the Defendant, hired an orthopaedic surgeon to examine the Plaintiff. He testified, in essence, that the Plaintiff had no serious injuries or ongoing problems. The court rejected this doctor’s evidence finding that ‘it was obvious to me that he had not spent as much time, nor was he as objective in his assessment of the Plaintiff (as her own physicians were). (ICBC’s doctor) impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefoe attach little wieght to his evidence.
This case is also worth reviewing for the judge’s great summary of the law relating to future wage loss at paragraphs 34 and 35.