Tag: icbc claim settlement

ICBC Claims, Ruptured Discs and Causation

Reasons for judgment were released today involving a disc injury with 2 potential causes.
The Plaintiff was involved in 3 car accidents. This lawsuit involved the second accident. The Plaintiff was ultimatley diagnosed with a ruptured disc in her back. The issue at trial was whether the ruptured disc was caused by the first or second accident (apparently no-one blamed the third accident as a potential cause).
“Causation” is often a key issue at many ICBC claims and frequently ICBC takes the position at trial that while a Plaintiff is injured the injury would have existed even without the car accident as it was caused by previous or subsequent events.
In this case a physiatrist and a GP testified on behalf of the Plaintiff. No defence medical evidence was called, instead, the defence relied on their lawyer’s cross examination of the Plaintiff experts.
The Plaintiff had an MRI which showed a moderate sized diffuse disc bulge or protrusion at L-4/5 with associated disc desiccation or drying.
The court was not satisfied with the Plaintiff’s experts explanations linking the disc protrusion to the second car accident. The court instead found that it is more likely that the disc injury was caused by the first car accident and the second accident aggravated this injury for a period of time.
For the aggravation of this disc injury the court awarded general damages (pain and suffering and loss of enjoyment of life) of $30,000. The Plaintiff’s claim for loss of earning capacity and cost of future care were dismissed on the basis that the disc injury was not caused by the accident and any exacerbation of the injury caused by the accident ended in 2005.
This case shows that nothing should be taken for granted when taking an ICBC claim to trial.  Here both doctors seemed in agreement that the second car accident caused the disc injury and no medical experts disagreed with this finding.  After hearing this evidence first hand in court the trial judge did not agree with the Plaintiff’s experts and dismissed the allegation that the second car accident caused the disc injury.  Even where the medical evidence is not contradicted you cannot guarantee that a court will accept it!  This is the risk of trial and cross-examination.  Trial risks need to be accounted for when considering ICBC claim settlement and valuing fair payment for injuries.

Damages of $159,857 Awarded for Soft Tissue Injuries and Migraines

Reasons for judgment were released today by the BC Supreme Court compensating a Plaintiff for accident related injuries.
The trial concerned a 2001 BC car accident. Her vehicle was struck in a down-town Vancouver intersection by a left-turning van. Liability (fault) was admitted leaving only the issue of quantum (value) of injuries and losses.
The impact was reasonably significant causing the Plaintiff’s head to jerk to the right and hit the window, then snap back.
At the time of the accident the Plaintiff was a 38 year old operations manager at a Vancouver travel agency. As with many ICBC claims that head to trial the Plaintiff’s pre-accident health was explored at trial in some detail. The court found that, prior to the Vancouver car accident, the Plaintiff ‘continued to suffer regularly from migraine and tension headaches, and from neck and back pain due to stress and postural strain. (the Plaintiff’s) tension induced neck and shoulder pain sometimes precipitated migraines.’
The court concluded that despite these pre-accident problems, the Plaintiff ‘continued to funciton without significant compromise‘ prior to her Vancouver car accident.
As is often the case in ICBC injury claims, the court heard from various medical experts including a psychologist, a psychiatrist, an orthopaedic surgeon and an occupational therapist.
After hearing the competing evidence the court found that “the increase in (the Plaintiff’s) headaches and neck and shoulder pain is causally related to the soft tissue injuries she sustained in the accident. I find that her increased neck and shoulder pain sometimes leads to full-blown migraines. In addition, it is related to other painful headaches that she experiences from time to time.”
The court accepted the expert evidence of Dr. Robinson who is a highly-regarded BC neurologist who specialises in headache disorders. He testified in part that “when patients with a stable migraine disorder are exposed to neck trauma they sometimes suffer an indefinite aggravation of their headaches. Due to the neck pain caused by trauma such patients develop a new way to get headaches, which may or may not develop into full blown migraines“.
In terms of prognosis, the court found that ‘with treatment, (the Plaintiff’s) headaches will probably continue to improve over the course of the next five years.‘ and that ‘the low grade neck and shoulder pain caused by the accident will probably persist indefinitely. As a result some aggravation of (the Plaintiff’s) pre-existing headache condition will also persist‘.
The court awarded $65,000 for non-pecuniary damages (pain and suffering). In doing so the court noted that ‘non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties…for purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide‘.
Thanks to these reasons for judgment, British Colmbian’s now have one more rough guide to help assess the fair pain and suffering value for lingering soft tissue injuries, aggravation of pre-existing injuries and migraine headaches when considering ICBC claim settlement.
This case is also worth a quick read for anyone advancing a claim for loss of earning capacity (future wage loss) as the court does a good job summarizing some of the leading legal precedents in this area at paragraphs 151-155 of the judgment.
The court concluded that, as a result of the Vancouver car accident, the Plaintiff ‘is less able to complete the same high volume of computer based work she could before before the accident and it it sometimes obvious that she is exhasted. In these circumstances, it is apparent that her earning capacity, viewed as a capital asset, has been impaired.’ The court went on to award $75,000 for this loss.

More on Court Costs, Settlement Offers, and Your ICBC Claim

If you are advancing and ICBC injury claim in BC Supreme Court, whether or not you are represented by an ICBC Claims Lawyer, you need to know something about Formal Settlement Offers. These settlement offers bring potential consequences if they are not accepted and these need to be considered when deciding whether an ICBC settlement offer is fair.
Rule 37 of the BC Supreme Court Rules permits parties to a lawsuit to make a Formal Settlement Offer and if the claim goes to trial and the settlement offer is beaten there can be significant Costs consequences (where the losing side has to pay the winning side tarriff court costs and disbursements which can easily exceed $10,000).
If you think of taking an ICBC claim to trial and winning I imagine you think of proving the other driver is at fault and being awarded money for your injuries. With formal settlement offers, winning is not quite that simple. If ICBC makes a formal settlement offer under Rule 37 and the judge or jury awards you less this can be considered a loss. Rule 37(24) sets out the consequences to a Plaintiff for failing to accept a Defendant offer to settle and ‘losing’ at trial, the subrule reads as follows:

Consequences of failure to accept defendant’s offer for monetary relief

(24) If the defendant has made an offer to settle a claim for money and the offer has not expired or been withdrawn or been accepted,

(a) if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and the defendant is entitled to costs assessed from that date, or

(b) if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

On the other side of the coin, there can be more than one way of winning. If you make a formal offer to settle your ICBC claim in compliance with Rule 37 and the judge or jury award you more money, Rule 37(23) sets out the consequences to the Defendant. The subrule reads as follows:

Consequences of failure to accept plaintiff’s offer to settle a monetary claim

(23) If the plaintiff has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted, and if the plaintiff obtains a judgment for the amount of money specified in the offer or a greater amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

Now, after absorbing all of the above you need to know that RULE 37 and 37A are being repealed as of July 2, 2008 and being replaced with Rule 37(B)!

That does not mean that you just wasted your time learning the above. If a formal offer to settle an ICBC injury claim is made before July 2, 2008 it needs to comply with Rule 37 or Rule 37A to trigger ‘costs consequences’.

To trigger costs consequences in an ICBC claim that goes to trial any offer made after July 2, 2008 has to comply with Rule 37B. To do so the offer must

1. be made in writing

2. be delivered to all parties of record, and

3. contain the following sentence “the [name of party making the offer] reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgement on all other issues in this proceeding”.

It seems that the purpose of Rule 37B) is to simplify the process of making formal settlement offers. The consequences of taking ICBC claims to court and beating (or not beating) a formal settlement offer seem to be less certain under this new rule. Rule 37B(4) sets out the consequences as follows: “The court may consider an offer to settle when exercising the court’s discretion in relation to costs”.

The options given to the court are set out in subrule 5 which states:

In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of the delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of the delivery of the offer to settle.

Subrule 6 sets out the factors a court may consider in exercising its costs discretion where a formal offer was made stating:

In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on an later date

(b) the relationship between the terms of the settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate

I for one welcome Rule 37B. One of the biggest criticisms made by plaintiff ICBC injury claims lawyers was that the old Rule 37 was unfair to plaintiffs as a person injured in a car accident was always in a worse financial position to face the consequences of losing at trial than ICBC. This lopsided reality created a lot of pressure on people advancing ICBC injury claims in BC Supreme Court to consider settlement when faced with a Rule 37 formal settlement offer.

It will be interesting to see if our BC courts, when considering “the relative financial circumstances of the parties” will consider ICBC a party to the lawsuit of an ICBC injury claim. Typically, ICBC is not named as a defendant to a ICBC Injury tort Claim, instead those at fault for the collision are named and often they simply happen to be insured by ICBC. So ICBC is not formally a ‘party’ to most ICBC injury tort claims.

If the court is willing to consider the fact that the Defendant is insured when weighing the ‘relative financial circumstances of the parties‘ then this Rule is a welcome change for anyone advancing an ICBC injury claim. If not, perhaps the court is willing to consider this under “any other factor the court considers appropriate“.

Do you have questions about an ICBC settlement offer or the Rules of Court governing settlement offers in BC Supreme Court? If so click here to arrange a free consultation with ICBC Injury Claims lawyer Erik Magraken.

 

Does Your Lawyer Act for ICBC? Ask, You May Be Surprised By The Answer…

You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasobly so, that the lawyer is acting for you and not ICBC, right? Not always…
Lawyers typically have many clients. Many ICBC claims lawyers work both sides of the fence, that is, they represent injured people in advancing ICBC claims on some files and on other files they represent ICBC in defending against ICBC injury claims. Other lawyers restrict their practice to one side or the other.
Many people see lawyers working both sides of the fence as an inherent conflict of interest. They want their lawyer to represent injured people only, not insurance companies. Others like the idea that their lawyer also represents ICBC sometimes because perhaps such a lawyer has better insight into the defence tactics used by ICBC.
The problem, and the reason why I write this post, is that sometimes the potential conflict of interest is much worse than simply having a lawyer who works both sides of the fence. It is a problem of a lack of informed consent.
ICBC has contracted with many law-firms in BC for services in the defence of motor vehicle accident claims. ICBC requires some of these firms to sign an agreement called the Strategic Alliance Agreement (SAA).
Under the SAA, law firms whose lawyers are retained to act for ICBC are not permitted, when representing a plaintiff on another file, to sue ICBC for bad faith or to seek punative, aggravated or exemplary damages against ICBC.
Specifically, the SAA states that “ICBC may impose penatlies against the firm…..(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insureds…
Also, that “members of the legal firms team will not directly or inderectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.”
What a conflict of interest!
The Law Society of BC (the institution that governs lawyers in BC) has held that it is ok for a lawyer who represents ICBC and who is bound by the terms of the SAA to also act against ICBC in another claim. HOWEVER, clients need to be advised about this potential conflict of interest. Sepcifcially, “A lawyer (bound by the SAA) may properly act against ICBC for clients whose cases fall outside of the restrictions. However, a lawyer acting in these circumstances MUST ADVISE THESE CLIENTS OF THE LAWYER’S RELATIONSHIP WITH ICBC AND THE IMLICATIONS OF THE RESTRICTIONS THE LAWYER IS UNDER.
It is all about informed consent. There is nothing wrong in hiring a lawyer to represent you who has signed the SAA but you are entitled to know about these restrictions. If you know about these restricitons you may not want to hire such a lawyer and instead retain an icbc claims lawyer who is not bound by any contractual restrictions with ICBC. Ask your lawyer if he signed the SAA, you may be surprised by the answer.
If your lawyer signed the SAA and did not tell you this up front, you were deprived of an opprotunity to make an informed decision. If this occurred you may want to ask yourself why your lawyer kept this information from you…?
Do you need to speak with an ICBC Claims Lawyer?  Contact Erik Magraken for a free consulation.

$18,000 Awarded for 2.5 Year Whiplash Injury With Headaches

In brief reasons for judgement released today by the BC Supreme Court, Madam Justice Morrison awarded a 33 year old Plaintiff $18,000 for pain and suffering (non-pecunairy damages) for injuries as a result of a 2005 motor vehicle accident.
The Plaintiff’s vehicle was rear-ended in Delta, BC in August, 2005. There was relatively little vehicle damage.
The Defendant’s lawyer admitted fault for the accident. The Defence ran what can be called ICBC’s Low Velocity Impact Defence, that is the defence lawyer led evidence that this was a ‘low impact’ collision with little damage to the vehicles. The Defence lawyer suggested that an appropriate pain and suffering award was $3,000.
The court made a positive finding with respect to the Plaintiff’s credibility. The court qualified the Plaintiff’s massage therapist as being capable of giving expert evidence with respect to massage therapy.
The court accepted that the Plaintiff suffered from pain and discomfort until 2007 when the soft-tissue injuries healed. In short, the Plaintiff suffered from soft tissue injuries affecting her neck and shoulders. The acute phase of injury lasted several months and gradually improved by the time of trial. The court accepted that the Plaintiff was fully recovered by the time of trial.
The Plaintiff had no lost wages as a result of the accident. $18,000 was awarded for pain and suffering for these injuries.
This case is worth a quick read as it is a great example of an LVI claim going to trial, having all the evidence heard in two days, and receiving timely reasons for judgement. Counsel for the Plaintiff did a great job getting this matter tried and having the client compensated for an amount outside of ICBC’s soft tissue injury settlement guidelines and outside of ICBC’s LVI policy.
Paragraph 37 of Madam Justice Morrison’s reasons for judgement was the highlight for me where she dismissed the LVI defence by stating as follows:
The motor vehicle accident was a minor one, with minor damage to her vehicle, but as Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) reminds us, a minor motor vehicle accident does not necessarily mean minor injuries. In Boag v. Berna, 2003 BCSC 779, Mr. Justice Williamson reflected at paragraph 12, “That a piece of steel is not dented does not mean that the human occupant is not injured.”
Cases such as these are certainly key ammunition should you wish to take an LVI case to trial.  If you have questions about this case or potential settlement of a similar ICBC claim feel free to click here to contact the author of this article.

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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.

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