When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.
This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:
Rule 30 — Physical Examination and Inspection
Order for medical examination
(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.
(2) The court may order a further examination under this rule.
Questions by examiner
(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.
Order for inspection and preservation of property
(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.
Entry upon land or buildings
(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.
Application to persons outside British Columbia
(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.
On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.
What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.
Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:
The court’s discretion must be exercised judicially on the basis of the evidence;
A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
A passage of time alone is not a sufficient reason to order a second examination;
Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.
The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties in their preparation for trial: Wildemann v. Webster.
Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v. Passmore.
In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.
When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.
When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.
Reasons for judgement were released today showing the potential consequences of driving after drinking and lying to ICBC about one’s level of intoxication.
In 2004 the Plaintiff was involved in a serious single vehicle accident. His vehicle was totaled and the amount of his own vehicle damage was $67,000.
He told ICBC that “I had no alcohol to drink on the day of the accident. I may have had one or two drinks in the twenty four hours prior to the accident”. It turns out this was false.
ICBC refused to pay the Plaintiff’s own damage claim. The Plaintiff sued ICBC for the value of the vehicle damage.
The evidence of a blood alcohol analyst was tendered by ICBC which showed that his evidence of ‘one or two drinks‘ was “inconsistent with the results of the blood sample analysis“.
In the end ICBC refused to pay out the Plaintiff’s claim because of his false statement to ICBC. Section 19(1)(e) of the then Insurance (Motor Vehicle) Act states that if an insured makes a willfully false statement with respect to an ICBC claim under their plan of insurance the claim can be rendered invalid.
Mr. Justice Masuhara concluded that ICBC was right in refusing to honour the Plaintiff’s claim and dismissed the lawsuit finding that “It is apparent to me that (the Plaintiff) was seriously intoxicated the night before the accident…He had a responsibility out of good faith to his insurer to disclose at least that he could not recall because of his drinking, instead of stating that he ‘may have had’ one or two beers…which can be taken as a statement of minimal consumption….I conclude, regrettably, that the evidence is clear and cogent that (the Plaintiff) did not have a belief in the truth of the statement he provided regarding his alcohol consumption‘.
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:
 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.
 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:
 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).
Reasons for judgment were released today finding a Plaintiff cyclist 100% at fault for a 2004 collision between his bicycle and a concrete mixer truck.
The collision was significant and resulted in severe injuries. In order for these to be compensable someone needs to be at fault for them. That’s what this trial focused on.
Here the Plaintiff was driving on the shoulder of the roadway approaching an intersection. The concrete mixer truck was attempting a right hand turn and the Plaintiff collided with the truck.
The court made some useful comments about the duties of cyclists who choose to drive on the shoulder of the road rather than on the roadway itself, namely that:
 The evidence clearly establishes that Mr. Sivasubramaniam failed to meet the standard of care required of a driver in the circumstances, and that he was negligent. He was driving on the shoulder of the roadway, rather than in the lane marked for vehicle travel. I accept that it would also have been hazardous for Mr. Sivasubramaniam to ride in a driving lane on such a busy street, but having chosen to ride in an area that is not designated for vehicles; and to pass vehicles on the right hand side while travelling in that area, Mr. Sivasubramaniam had a duty to take extra care to ensure that he was visible to drivers, and that he took precautions. This was particularly so as he approached a busy intersection. Options available to him included signalling and moving into the driving lane to his left when it was safe to do so, and proceeding through the intersection in that driving lane; or stopping and dismounting from his bicycle and crossing the intersection in the pedestrian crosswalk and then remounting his vehicle on the other side of Blue Mountain Street.
 At the very least, he ought to have slowed his bicycle and to have checked carefully for indications that vehicles were intending to turn right from Lougheed Highway onto Blue Mountain Street, before proceeding across the intersection to the right of traffic in the driving lanes.
 Instead of driving in a cautious fashion, I conclude that Mr. Sivasubramaniam was accelerating as he approached the intersection, and, as I have said earlier, steered to the right with the intention of either riding in the cross walk – a prohibited act – or riding near it.
The court summarized its findings at pargaraph 67 of the judgement concluding that the cyclist was 100% at fault stating that:
The evidence compels me to conclude that for some unknown reason, Mr. Sivasubramaniam simply failed to note the fact that Mr. Franz’s vehicle not only was intending to turn right, but had commenced that turn, and he failed to slow or stop his bicycle until it was too late to do so. Mr. Sivasubramaniam assumed, incorrectly, that the concrete mixer truck would proceed straight through the intersection. He made this assumption despite his knowledge that vehicles frequently do turn right at this intersection, and despite the signal flashing in several locations on the concrete mixer truck. Rather than slowing or stopping his bicycle as he approached the intersection, he was, I conclude, accelerating by continuing to pedal on the downward slope.
So you are injured in a BC car accident and start an ICBC claim. ICBC makes an inadequate settlement offer for your pain and suffering and you start a lawsuit in BC Supreme Court. Then, your injuries take a turn for the better and you realize your claim can adequately be dealt with more efficiently in Small Claims Court. Can you apply to move your claim down? Absolutely!
Section 15 of the Supreme Court Act allows for such an application. Specifically, s. 15 reads as follows:
Transfer to Provincial Court
15 A judge or master may transfer proceedings to the Provincial Court of British Columbia if
(a) the proceedings are within the jurisdiction of the Provincial Court under the Small Claims Act,
(b) a party to the proceedings applies to the judge or master, or all parties to the proceedings agree to the transfer, and
(c) the judge or master considers it appropriate to do so.
Both Supreme Court and Small Claims Court have their own strengths and weaknesses as forums for advancing ICBC injury claims. The decision of which court to sue in is not always an easy one and it is a good idea to get a free consultation with an ICBC claims lawyer before deciding how to proceed. It is reassuring, however, to know that after you start in Supreme Court you can bring an application to transfer the proceeding to the lower court.
Today, reasons for judgement were released allowing just such an applicaiotn that is worth reviewing for anyone involved in an ICBC Supreme Court claim that is considering moving down to the Provincial Court.
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
I’ve said it before an I’ll say it again, the issue of FAULT and ICBC claims tends to be most heavily disputed when dealing with left hand turning vehicles in intersection crashes.
Reasons for judgement were released today determining fault as a result of a 2004 intersection crash that occurred in Vernon, BC.
The Plaintiff was travelling through the intersection. The Defendant, travelling from the opposite direction, was intending to make a left hand turn. A significant collision happened. The issue of fault was decided by Mr. Justice Brooke.
This is an interesting case because it appears that the Plaintiff suffered a serious brain injury (a frontal lobe injury) as a result of this crash. When motorists suffer from brain injuries in car accidents it is not unusual for them to suffer a period of amnesia, either before, during or after the event. Here it appears that the trauma of the crash caused the Plaintiff to have no recall of the crash.
How then, do you prove your case when you can’t remember what happened? This case shows some of the usual trial strategies in such a situation. In this case the defendant’s examination for discovery transcript was utilized, lay witnesses were called, the investigating police officer who took scene measurements was called as to where expert accident reconstruction witnesses.
In the end the court found that the Plaintiff vehicle was speeding at the time of the crash and that the left turning driver failed to see a ‘dominant’ vehcile that was ‘there to be seen’. The court reference s. 174 of the BC Motor Vehicle Act in finding the left hand turner largely at fault. The court also found the speeding ‘through’ driver at fault.
In BC personal injury claims, if both parties are at fault the court has to determine the degree of fault of each party. Here the court assigned 20% of the blame to the speeding through vehicle and 80% against the left hand turning vehicle.
One matter worth noting is the effect of the traffic ticket. Here the defendant was ticketed for ‘failing to yield on a left-hand turn.’. He paid the ticket. Such an act is an ‘admission against interest’ and a court can use this ‘admission’ to help decide who is at fault. However, such an admission is not binding on the court. Here the defendant testified that when he gets a ticket he pays it. The court found him to be a straighforward and credible witness and accpeted that in not disputing the ticket that spoke to his characger rather than admission of fault.
Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries and losses arising from a 2006 BC car accident.
This was primarily a low-back soft tissue injury case. The Plaintiff did have other injuries but these largely resolved.
Fault was admitted for the accident, as such, the trial focussed exclusively on quantum (value of the injuries).
In reading the reasons for judgement Mr. Justice Metzger was obviously impressed with the Plaintiff. ICBC’s defence (assuming of course that the defendants were insured by ICBC) was largely rejected.
The court summarized the plaintiff’s injuries and course of recovery as follows:
 I am satisfied that within seven to ten months of the accident, the plaintiff recovered from any significant discomfort or effect of injuries to his shoulder, wrist, right foot and right side. Although Mr. Raper’s low back pain does not prevent him from working, or from mountain scrambling, I am satisfied that his physical ability in these pursuits has been compromised. His ability to perform his work to his previous standards and to enjoy his sports activities has been decreased.
After naming some precedents dealing with low back injuries the court went on to award $35,000 for non-pecuniary damages (pain and suffering).
This case is worth reading for the court’s discussion of future wage loss or loss of future earning capacity. In this case the Plaintiff returned to work shortly after the accident and continued to work through to trial. Despite this the court found that he was entitled to an award for loss of future earning capacity because he could no longer do general carpentry work (something that he has done in the past during slow cycles of employment) and that he lost the opportunity tow obtain a management position in his current line of work. In these circumstnaces the court awarded $55,000 for loss of earning capacity.
This case, and many like it, goes to show that simply because a person recovered from injuries to the point that they are able to return to work does not preclude an award for future wage loss. There are many factors to consider when valuing a future wage loss in an ICBC claim. In this case Mr. Justice Metzger did a good job summarizing the law and repeated one of the quotes that all ICBC claims lawyers should be aware of, namely that:
Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.
I’m still in (not so sunny today) Kelowna (currently on break during an icbc claim examination for discovery), so bear with me as this blog entry is a little lighter on detail than I would like.
As most ICBC injury claims lawyers know these claims can go on for years, particularly when dealing with severe injuries.
During these years you go on living life as normally as possible. You go to work, school, play sports, socialize with friends, go on holidays etc. Like most people, you probably take photos of your activities from time to time. Did you know that ICBC can sometimes get their hands on these?
Reasons for judgement were released today forcing a Plaintiff involved in a BC injury claim to produce to the Defendant any photos of him on vacation after the accident. These applicaitons are routinely made by ICBC defence lawyers and are sometimes successful.
Here the court did a great job in referring to sevaral precedents where courts have either ordered, or refused to order, the production of holiday photos of a party to a lawsuit. These cases are worth reviewing when deciding how to respond to an ICBC request that private photos be shared with them in their efforts to defend against an injury claim.
The court concluded that:
12] Here counsel on behalf of the plaintiff points out there should be evidence of the existence of photographs and then if it is established that photographs exist, that they be shown to be relevant. He also raises the issue of others being in photographs and those other people having privacy rights.
 I am satisfied here that the fact of the plaintiff having been on vacation is such that one can presume there are some photographs having been taken, whether by the plaintiff or by others, and of course if the plaintiff is not in the possession or control of photographs taken then nothing need be produced by the plaintiff.
 It is my understanding there is a discovery scheduled for the 12th of August of this year, and although the trial is not set until the 23rd of March, ’09, I am satisfied it is not a sufficient stretch, if you will, to require there to be proof of holiday or vacation photographs prior to ordering that they be produced.
 So far as the privacy issues relating to others is concerned, the only interest the defendant has is in the activities of the plaintiff. The plaintiff claims damages for loss of enjoyment of life and injury to portions of the plaintiff’s anatomy as were injured in a 1998 workplace injury. There is a significant likelihood of probative value in vacation photographs, the vacation having been taken at a time when he states he was disabled from carrying on his normal work duties. Apparently the holiday in the Dominican Republic was some time between the 15th of December and the 13th of January and took place after the 6 November motor vehicle accident.
 So I am satisfied that there should an order go that vacation photographs taken during that time frame of the vacation to the Dominican Republic be produced, but that it be at the option of the plaintiff to delete the facial features of any persons other than himself in the photographs.
One thing all of you should know is this – If you take photos and publish them on the internet (myspace, facebook etc.) these become public and ICBC can verly likely get access to these. As an ICBC claims lawyer I have seen many instances of ICBC tracking down such photos and using these in the defence of personal injury claims.
What is more troubling is when ICBC tries to get access to clealry private photos. Cases such as this one are worth reviewing for anyone concerned about personal privacy and their ICBC claim.
As an ICBC claims lawyer I find myself frequently traveling throughout BC representing clients involved in ICBC claims. This week I’m back in one of my favourite destinations (particularly this time of year), sunny Kelowna, BC. The lake, the heat, what’s not to love?
I try to minimize the amount that travel interferes with business as usual, but despite my best efforts the responsibilities of life on the road do get in the way, so here is the ‘travel version’ of my reporting on recent ICBC claims…
Litigation Privilege. An ICBC claims lawyer representing his/her clients may come into the possession of privileged information. One of the most common types of privilege claimed over evidence by ICBC claims lawyers is the medico-legal report.
When a lawyer obtains a report providing an opinion as to the extent of injury caused in a BC car accident that report may very well be privileged and not disclosed to ICBC. The problem is, oftentimes a privately paid report authored by an independent physician or other hired expert may provide useful rehabilitation advice for a client. So the question is, can such a report be disclosed to the client’s treating physician to better aid in rehabilitation without waiving legal privilege and forcing disclosure to ICBC? A judgement released today seems to say that this can in fact be done.
In this case the Plaintiff had 2 claims, the first being the ‘tort claim’ meaning the claim against the motorist who injured the Plaintiff (who happens to be insured by ICBC) and a ‘part 7 claim’ meaning a claim against ICBC directly for the enforcement of any ‘no fault benefits’ that may be owing as a result of the same BC car accident.
The Plaintiff’s lawyer obtained a report that made some rehabilitation recommendations. This report was shared with the Plaintiff’s treating physician who adopted some of the recommended treatments. The ICBC defence lawyer argued that this disclosure ‘waived’ the claim for privilege. The Plaintiff lawyer disagreed. The ICBC defence lawyer made a motion asking the BC Supreme Court to order that the privately hired report be handed over to ICBC. Master Caldwell of the BC Supreme Court dismissed the motion stating that:
I am unaware of any authority which would dictate that reports which are prepared for purposes of litigation but which are provided to an individuals GP for treatment purposes lose the protection of privilege. No such authority was provided to me.
This is a great result for Plaintiff’s involved in ICBC claims and is certainly must reading for an ICBC claims Plaintiff lawyer who wishes to share a private report with a client’s treating doctor for treatment purposes.