Tag: ICBC claims

More on LVI's, ICBC Claims and Soft Tissue Injuries

Written by admin on June 30, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Whiplash Cases, Uncategorized.

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result. It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash? Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005. It was a rear-end crash. The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’. The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles. The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash. The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall. This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries. In other words, she should get better. The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case. It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’. In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan. The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’. Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however. The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident. I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

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!)

Examinations for Discovery and Your ICBC Claim

Written by admin on June 4, 2008. Posted in Uncategorized. 50 Comments on Examinations for Discovery and Your ICBC Claim

If you are advancing an ICBC injury claim and started a court action in BC Supreme Court you may very well have to go through an ‘examination for discovery’. I have received numerous questions about the discovery process from people involved in ICBC claims through this website and thought I would summarize some of my comments in the below blog.
The usual summary I give when explaining what an examination for discovery (XFD) is to people who are not familiar with the term is to think about a ‘deposition’ as often depicted on TV legal dramas. In essence, a discovery is a pre-trial step in which the opposing lawyers get to ask a party to a lawsuit questions about the claim.
The rules of court governing the prosecution of civil (legal actions between two private citizens) claims requires disclosure of key facts and circumstances prior to a trial. In the context of ICBC claims, the discovery process permits the other lawyer to question a plaintiff about the accident and injuries, the effects of them on the plaintiff’s life and the financial losses that are being claimed.
Examinations for discovery are conducted under oath (or affirmation) and are conducted before a court reporter. This is not a formal process conducted before a judge, rather, it usually occurs in a business office owned and operated by private court reporters. The court reporter records the questions and answers.
There are 2 very broad purposes to examinations for discovery. The first is to learn all about the other side’s case. That is, to get the Plaintiff’s evidence first hand and in person regarding the accident and injuries. This helps the other lawyer weigh the credibility and reliability of the Plaintiff and to make an assessment of whether the Plaintiff will present well in court.
The second purpose is to damage the other sides case. A lawyer conducting a discovery has the right to use the questions and answers that he/she likes and to read these into the trial record should the claim proceed to court. For this reason it is essential that anybody advancing an ICBC claim is very well prepared prior to attending an examination for discovery. Any answer given that is harmful can and likely will be used by the other lawyer to harm the case should it proceed to trial.
For an example of how an answer at an examination for discovery can harm an ICBC claim just read the recent judgment of Yapyuco v. Paul, where Mr. Justice Curtis dismissed the Plaintiff’s claim in large part due to the answers given at her examination for discovery.
Preparation for discovery is a lengthy process and I can’t summarize all the useful advice as to how best to conduct oneself in a discovery in this short blog. I will, however, point out some of the typical things canvassed at discoveries of ICBC claims below.
Normally, a Plaintiff in an ICBC claim is questioned about the 14 below categories (I should point out that discoveries at ICBC claims are not limited to these categories, these are simply general categories of questions that often come up)
1. Your Personal History – such as name, age, date of birth, place of birth and family members details
2. Your Educational History – including all levels of education and academic accomplishments
3. Your work history including contact information for all employers
4. Your plans preceding the accident in terms of personal life and vocation
5. How these plans changed as a result of the accident
6. How the accident happened including details of speed, weather, lighting, distances and all injuries sustained in the accident
7. The course of treatment taken after the accident including the names of all doctors and therapists
8. Changes in lifestyle as a result of the accident including social, recrational , family, personal and employment changes. Addressing employment usually details of lost wages or wage earninng opportunities are canvassed as well.
9. Medical and personal status prior to the accident
10. Present condition and limitations
11. Present plans for employment and whether there are any restrictions on employment
12. Future plans for treatment
13. Details of activities that have been affected by the accident related injuries
14. The details of a typical day and what it is like to live with the injuries.
No 2 discoveries are alike and I stress again that the above is nether an exhastive list of the types of questions asked at discoveries involving ICBC claims nor are all of the above categories always covered at discoveries for ICBC claims.
Assuming you have hired a lawyer to assist you with your ICBC claim he/she will be present at the discovery and will object to any inappropriate questions posed by the other lawyer. If the discovery is conducted professionally by the ICBC lawyer the objections are usually few and far between. The lion’s share of work that an ICBC claims lawyer does is conducted prior to the discovery.
A good ICBC claims lawyer will ensure a client is well prepared, understands the process and understands how the answers given can be used to hurt the claim. ICBC cases are typically ‘record intensive’ and care must be taken in preparation to review these medical and other records to consider what use they may be put to at a discovery.
Do you have questions about an ICBC claim or an examination for discovery in a personal injury claim that you would like to discuss with an ICBC claims lawyer? If so, click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

$19,840 Awarded for 15 Month Soft Tissue Injuries

Written by admin on May 23, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.
The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.
A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.
The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”
The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.
In the end the court awarded damages as follows:
Pain and Suffering: $15,000
Past Wage Loss: $4,790.50
Mileage Expenses for treatments: $50
This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.
Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.

Access to Justice – Where is the Nearest BC Supreme Court Registry?

Written by admin on May 23, 2008. Posted in Uncategorized.

Do you need to know where the nearest BC Supreme Court or BC Provincial Court (small claims court) registry is to you? This informtion can be found on the BC Courts website. For the convenience of my readers I reproduce the full list of BC Supreme Court registries below.
If you are advancing an ICBC claim, are approaching your limitation period, and are not represented by an ICBC claims lawyer the first thing you will need to know is where the closest court registry is. Well, if you’re looking to file your claim in Supreme Court here you go:

ATLINFiling	P.O. Box 100 3rd Street Atlin, B.C. V0W lA0	(250) 651-7595	(250)651-7707
CAMPBELL RIVER	500-13th Ave Campbell River, B.C. V9W 6P1	(250) 286-7650	(250)286-7512
CHILLIWACK	46085 Yale Rd. Chilliwack, B.C. V2P 2L8	(604) 795-8350	(604)795-8393 (Civil)Fax Filing: (604)795-8397(604)795-8345 (Criminal)
COURTENAY	Room 100 420 Cumberland Road Courtenay, B.C. V9N 2C4	(250) 334-1115	(250)334-1191
CRANBROOK	Room 147 102 – 11^th Avenue South Cranbrook, B.C. V1C 2P3	(250) 426-1234	(250)426-1352Fax Filing: (250)426-1498
CRESTONClosed Contact Cranbrook
DAWSON CREEK	1201 – 103rd Avenue Dawson Creek, B.C. V1G 4J2	(250) 784-2278	(250)784-2339Fax Filing: (250)784-2218
DUNCAN	238 Government Street Duncan, B.C. V9L 1A5	(250) 746-1227	(250)746-1244
FERNIE (Sparwood) Closed Contact Cranbrook
FORT NELSON	Bag 1000 4604 Sunset Drive Fort Nelson, B.C. V0C 1R0	(250) 774-6990	(250)774-6904
FORT ST. JOHN	10600 – 100 Street Fort St. John, B.C. V1J 4L6	(250) 787-3266	(250)787-3518
GOLDEN	837 Park Drive P.O. Box 1500 Golden, B.C. V0A 1H0	(250) 344-7581	(250)344-7715
GRAND FORKSClosed Contact Rossland
INVERMEREClosed Contact Cranbrook
KAMLOOPS	223 – 455 Columbia Street Kamloops, B.C. V2C 6K4	(250) 828-4344	(250)828-4332Fax Filing: (250)828-4345
KELOWNA	1355 Water Street Kelowna, B.C. V1Y 9R3	(250) 470-6900	(250)470-6939Fax Filing: (250)979-6768
KITIMATClosed Contact Terrace
LILLOOETClosed Contact Kamloops
MERRITTClosed Contact Kamloops
NANAIMO	35 Front Street Nanaimo, B.C. V9R 5J1	(250) 741-3805	(250)741-3809
NELSON	320 Ward Street Nelson, B.C. V1L 1S6	(250) 354-6165	(250)354-6539Fax Filing: (250)354-6133
NEW WESTMINSTER	Begbie Square 651 Carnarvon Street New Westminster, B.C. V3M 1C9	Chambers: (604) 660-0686Civil: (604) 660-0571Criminal: (604) 660-8517Divorce: (604) 775-0671Finance: (604) 660-8532Probate: (604) 660-0579Trial Scheduling: Supreme: (604) 660-8551	(604)660-8977 (Criminal)(604)660-1937 (Civil)
100 MILE HOUSEClosed Contact Williams Lake
OLIVERClosed Contact Penticton
PENTICTON	Room 116 100 Main Street Penticton, B.C. V2A 5A5	(250) 492-1231	(250)492-1378Fax Filing: (250) 492-1290
PORT ALBERNI	2999 – 4th Avenue Port Alberni, B.C. V9Y 8A5	(250) 720-2424	(250)720-2426
PORT HARDY	9300 Trustee Road Mailbag 11000 Port Hardy, B.C. V0N 2P0	(250) 949-6122	(250)949-9283
POWELL RIVER	103 – 6953 Alberni Street Powell River, B.C. V8A 2B8	(604) 485-3630	(604)485-3637
PRINCE GEORGE	J.O. Wilson Square 250 George Street Prince George, B.C. V2L 5S2	(250) 614-2700	(250)614-2737 (250)614-2717Fax Filing: (250)614-7923
PRINCE RUPERT	100 Market Place Prince Rupert, B.C. V8J 1B8	(250) 624-7525	(250)624-7538
PRINCETONClosed Contact Penticton
QUESNEL	305 – 350 Barlow Avenue Quesnel, B.C. V2J 2C1	(250) 992-4256	(250)992-4171
REVELSTOKEClosed Contact Salmon Arm
ROSSLAND	P.O. Box 639 2288 Columbia Avenue Rossland, B.C. V0G 1Y0	(250) 362-7368	(250)362-9632Fax Filing: (250)362-7321
SALMON ARM	BOX 100, Rm. 203 20 Hudson Avenue N.E. Salmon Arm, B.C. V1E 4S4	(250) 832-1610	(250)832-1749Fax Filing: (250)833-7401
SMITHERS	No. 40, Bag 5000 3793 Alfred Avenue Smithers, B.C. V0J 2N0	(250) 847-7376	(250)847-7710Fax FIling: (250)847-7344
TERRACE	3408 Kalum Street Terrace, B.C. V8G 2N6	(250) 638-2111	(250)638-2123Fax Filing: (250)638-2143
VANCOUVER	800 Smithe Street Vancouver, B.C. V6Z 2E1	Administration: (604) 660-2847Accounting: (604) 660-2866Chambers: (604) 660-2849Criminal: (604) 660-2874Civil: (604) 660-2845Divorce: (604) 660-2486Probate: (604) 660-2876 (604) 660-2877Registrar’s Booking Desk (604) 660-2853Trial Scheduling: (604) 660-2853 (Civil) (604) 660-2854 (Civil) (604) 660-9201 (Criminal)	Administration: (604)660-2420Civil: (604)660-2429Criminal: (604)660-2418Registrar’s Booking Desk (604)660-0623Trial Scheduling: (604)660-0623
VANDERHOOFClosed Contact Prince George
VERNON	3001 – 27th Street Vernon, B.C. V1T 4W5	(250) 549-5422	(250)549-5621Fax Filing: (250)549-5461
VICTORIA	Location: 850 Burdett Avenue Victoria, B.C. Mailing Address: PO Box 9248 Stn Prov Govt Victoria, BC V8W 9J2	(250) 356-6634	(250)356-6279 (Criminal) (250) 356-6862 (Civil)
WILLIAMS LAKE	540 Borland Street Williams Lake, B.C. V2G lR8	(250) 398-4301	(250)398-4459Fax Filing: (250)398-4264

Are you looking for an ICBC Claims lawyer that services your community? If so contact ICBC Claims lawyer Erik Magraken to arrange for a free consultation.

Damages of $216,430 Awarded for 2 rear-end collisions

Written by admin on May 12, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.
The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.
The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.
A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.
This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.
After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.
Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work”
In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.”
In the end the court awarded damages as follows:

For the Accident of May 18, 2002:

Non-pecuniary damages	$30,000.00
Past income loss (subject to deduction for Income tax)	$5,939.18.

For the Accident of May 5, 2005

Non-pecuniary damages	$52,500.00
Past income loss (subject to deduction for Income tax)	$62,499.00
Loss of Future Earning Capacity	$45,500.00
Cost of Retraining	$2,730.00
Cost of Future Care	$15,300.00
Special Damages (Not apportioned)	$1,926.39

"No Impact Crash" Nets $40,000 Pain and Suffering Award

Written by admin on May 5, 2008. Posted in ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Privacy Issues, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.

Buckle Up Or Pay the Price

Written by admin on April 4, 2008. Posted in Uncategorized. 48 Comments on Buckle Up Or Pay the Price

Failing to wear a seatbelt can not only hurt you physically, it can hurt financially and I’m not referring to a traffic ticket.
A person advancing an ICBC claim who is injured through the fault of another motorist may be found “contributorily negligent” for failing to wear a seatbelt if it can be proven that injuries would have been prevented (or lessened) by the use of a seatbelt.
If a person advancing an ICBC claim is found contributorily negligent, the value of the ICBC claim goes down.
In these cases BC courts must apportion those injuries due to the failure to wear a seatbelt and deduct their value in compensating the injured person. Generally failing to wear a seatbelt results in reduction of the value of the claim by 15% – 25%, although the range of apportionment varies and can exceed this range.
When dealing with ICBC, it is important to keep in mind that failing to wear a seatbelt does not automatically reduce the value of the claim. It is for ICBC (or the insurance company / lawyer for the at fault driver) to prove that failure to wear a seatbelt caused or contributed to the injuries. Justice Fulton, the case Gagnon v. Beauliew, summarized the law as follows “In the case of this particular form of contributory negligence, the onus is on the defendant to satisfy the court, in accordance with the usual standard of proof, not only that the seat belt was not worn but also that the injuries would have been prevented or lessened if the seatbelt had been worn”
Also, there are some limited circumstances where failing to wear a seatbelt does not amount to negligence such as when a person has medical reasons making wearing a seatbelt unreasonable.
Circumstances excusing people from wearing seatbelts are the exception, not the norm so consider buckling up, failing to do so can not only add to your injuries, it can subtract from your pocket-book.

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.