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Can a Verbal Deal Create a Binding ICBC Claim Settlement?

Written by admin on . Posted in Settlement Law. 65 Comments on Can a Verbal Deal Create a Binding ICBC Claim Settlement?


When ICBC Tort and Part7 Claims are settled ICBC usually requires a ‘full and final release‘ to be signed as part of the deal.  There is a common misconception that individuals can simply refuse to sign the release if they get cold feet after negotiating a settlement.
There is, in fact, no legal requirement that an ICBC settlement be reduced to writing and a verbal discussion can create a bidning contract where a claimant gives up their right to sue.  This was discussed in reasons for judgement released today by the BC Supreme Court, Vancouver Regirstry,
In today’s case (Varesi v. Cadelina) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff and Defendant were both insured with ICBC.   The Plaintiff dealt with ICBC directly and after some initial negotiations the Plaintiff advised as follows “I feel that my original request of $10,000 is still fair. Although my research on the CanLII website leads me to believe I may be entitled to a higher settlement, at this time I am still willing to settle the claim for this amount. I have consulted with a lawyer in regards to filing a writ but again would like to be able to reach a fair conclusion outside of the court system.”
ICBC apparently responded that they accepted this offer and required the Plaintiff to submit receipts documenting her out of pocket expenses.  The Plaintiff had a different recollection stating that ICBC agreed to pay for her out of pocket expenses on top of the $10,000.  ICBC refused to do so arguing that they had a binding settlement.
The Plaintiff brought a lawsuit and in it’s early stages ICBC brought an application to have the lawsuit dismissed based on the alleged settlement.  Ultimately Mr. Justice McEwan dismissed ICBC’s application finding that the issue came down to credibility and it would need to be pursued at trial.  Mr. Justice McEwan provided the following reasons:

[25]         Where an oral contract is asserted and denied the case will generally come down to a contest of credibility. An example in the contest of an automobile insurance claim is Barclay v. Insurance Corp. of British Columbia, 2002 BCPC 15.

[26]         This is not a case of duress or unconscionability or undue influence. Depending on the evidence there may be an element of mistake. As the motion for summary judgment has been defended, the issue is whether there was a “meeting of the minds.”  The material is not at all decisive on that point, specifically as to the inclusion of the Part 7 benefits in the settlement. Mr. Boswell and the plaintiff differ on what was discussed, and such, if it remains an issue in the action when it is tried will have to be resolved on an assessment of credibility. Such an issue cannot be safely undertaken on the affidavit and documentary material before the court.

[27]         The defendants’ application for summary judgment on the alleged settlement contact is, therefore, dismissed, with leave to bring the issue on at trial, on a better evidentiary foundation, if the defendants consider it in their interests to do so.

While this case did not result in a dismissal based on the settlement discussions it demonstrates that a claimant can enter into a binding settlement even without signing a full and final release.  Settlements are based on ‘offers and acceptance’ and it is vital that a claim be valued properly prior to selling your right to sue.  You can access my archived posts discussing other legal issues involved in ICBC Settlements by clicking here.

Setting Aside an Unfair Settlement in an ICBC Injury Claim

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As I’ve previously written, typically when an ICBC claim is settled and a “full and final release” is signed the agreement is binding and can’t be undone.
BC Courts can, however, set aside ‘grossly unfair‘ agreements.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of the law.
In today’s case (McIsaac v. McIsaac) the Plaintiff was injured in a single vehicle car crash.  Her husband was driving and was the at fault party.   The Plaintiff’s injuries were serious enough to require hospitalization.
In the months that followed the collision ICBC approached the Plaintiff on a number of occasions and eventually a settlement was reached to resolve her claims for $22,000.  The agreement was ‘somewhat low‘ given the severity of her injuries.  She regretted finalizing her claim and retained a lawyer.   She commenced a lawsuit and asked the settlement to be set aside.  ICBC argued that it was a binding contract and should not be undone.  Mr. Justice Wong agreed with ICBC but before dismissing the lawsuit the Court set out the following useful summary of the law:

[17] I agree with defendant’s counsel’s submission that there are two alternative tests to assess the validity of the settlement.  Also, to have a settlement set aside or voided, the insured must have been unfairly induced to accept the settlement or release, and that the settlement or release must also be grossly unfair or grossly inadequate.  Settlement and release of a claim may not be set aside where the parties are not on equal footing if the insurer can demonstrate that the settlement is fair and reasonable.

[18] There are two alternative tests to determine the validity of a settlement.  Whether, when the settlement is looked at in the light of the knowledge of the adjuster at the time the settlement was entered into, the bargain was fair, just and reasonable, and whether the transaction seen as a whole is not sufficiently divergent from community standards of commercial morality that it should be rescinded.  See McCullogh v. Hilton (1998) 63 B.C.L.R. (3d) 272 (B.C.C.A.) and see also Gindis v. Brisbourne (2000) 72 B.C.L.R. (3d) 19 (B.C.C.A.), particularly at paragraphs 42 to 44.

[19] A settlement with an unrepresented claimant will not necessarily be invalid simply because all of the symptoms stemming from any injuries have not been fully resolved.  Again, see McCullogh.

[20] There is no evidence that the injuries sustained by the plaintiff were, at the time of settlement, any worse than what was understood by the plaintiff and the adjuster, nor is there any evidence that the plaintiff’s injuries have become any worse since the settlement was entered into.

[21] Quite apart from any alleged inequality of bargaining power, the plaintiff and the adjuster had a complete picture of the plaintiff’s medical condition at the time of the settlement directly from the plaintiff’s medical caregivers.

[22] Clearly on the evidence, the plaintiff relied on and trusted the ICBC adjuster and their bargaining power were unequal, but the ultimate question is whether viewed objectively, the agreement was unconscionable and offended applicable standards of commercial morality.

[23] I am satisfied on the evidence that it cannot be said that the plaintiff was taken advantage of by ICBC.  The plaintiff, upon receiving the offer to settle at $22,000, could have consulted with a lawyer before accepting the offer, but for reasons of her own chose not to.

[24] Counsel for the plaintiff now submits the adjuster relied on outdated 12 to 18 year case law authorities as guidance on damage quantum range, and did not make any adjustment for interim inflation.  Be that as it may, the amount offered likely also factored in some discount for contributory negligence by the plaintiff in not being seat belted at the time of the accident.

[25] I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlined factors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable.  In order to maintain consistency and predictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.

ICBC Injury Claims and Formal Settlement Offers; What You Need to Know

Written by admin on . Posted in BC Injury Claims Media Archives, Settlement Law, Uncategorized.

When taking an ICBC or other BC personal injury claim to trial in the Supreme Court it is vital to understand the financial consequences that can be triggered when formal settlement offers are made. I have written dozens of articles on this topic and you can access these here.
Below is a brief video discussing some of the key factors you need to consider when reviewing ICBC’s formal settlement offer under the BC Supreme Court Rules and further the issues you should consider when making your own formal settlement offer. I hope this information is of assistance.

More on ICBC Injury Claims, Lawyers and Binding Settlements

Written by admin on . Posted in Settlement Law, Uncategorized. 63 Comments on More on ICBC Injury Claims, Lawyers and Binding Settlements


Further to my previous post on this topic, reasons for judgement were released today by the BC Court of Appeal discussing the principles behind binding settlement agreements in ICBC injury claims when lawyers accept an offer on their client’s behalf.
As I wrote earlier:
Lawyers act as agents for their clients.  Lawyers can, therefore, bind their clients to a settlement.   Typically a client will give a lawyer authority to settle their claim for X dollars and the lawyer will attempt to get that amount or more.  If a lawyer accepts an ICBC settlement offer on behalf of their client the client is typically bound to the settlement, even if the client later wishes to get out of the settlement by not signing ICBC’s full and final release.
Today’s case (Lacroix v. Loewen) demonstrated this principle.  In Lacroix, the Plaintiff gave her lawyer instructions to accept a settlement offer.  The lawyer then did accept ICBC’s settlement offer.  The client, after speaking with some friends, decided not to proceed with the settlement and did not sign ICBC’s settlement contract.  The client proceeded with her Injury Claim and ICBC brought an application to dismiss the lawsuit on the basis that it was already settled.  The Chamber’s judge ruled that the case was not settled because ICBC insisted on a term beyond the scope of the initial settlement agreement thus ‘repudiating‘ the contract.  ICBC appealed and succeeded.  In setting aside the lower court’s judgement the BC Court of Appeal found there was no repudiation and set out the following principles:
25] The chambers judge held that there was a settlement and that ICBC then repudiated the agreement by insisting upon terms that were not agreed upon….

[38] Applying the principles of contractual interpretation, the communications between Mr. Mickelson and the adjuster, Mr. Per, objectively indicate that there was an enforceable settlement including both tort and Part 7 claims. Looking at all the material facts, the reasonable objective bystander would conclude that the parties intended to make a final settlement of both tort and Part 7 claims.

[39] At the time of the discussions between Mr. Mickelson and Mr. Per, there was no outstanding action for either tort damages or Part 7 benefits. There was simply a “file” which included both tort and Part 7 claims. When Mr. Mickelson and Mr. Per spoke, the evidence indicates that their discussions concerned the “file” as a whole, and the “merits” of her claims. No differentiation was made between tort and Part 7. Their discussions about “settlement” were directed to settling the “file”/“matter”. This is clear from Mr. Per’s affidavit, which states:

3.   On March 11, 2004, I received a telephone call from John Mickelson with respect to special expenses which he wanted covered. After a discussion of the merits of the file I offered to settle the matter for $5,500.00. John Mickelson stated that he would speak to his client and get back to me…

9.   On March 16, 2004, I spoke to John Mickelson by telephone with respect to the returned cheque and release. I specifically asked Mr. Mickelson if he had instructions from Ms. Lacroix to settle the matter at the time that the counter offer was made and accepted by myself. He told me that he did have such instructions.

[40] The judge correctly noted at para. 30 of his reasons that, “There was no mention of the fate of any subsequent Part 7 claims until the release was forwarded to counsel for the plaintiff”. However, the trial judge failed to acknowledge that there was little or no specific mention of individual aspects of any claims, tort or Part 7. The objective observer would conclude that was so because Mr. Mickelson and Mr. Per’s discussions were directed to a settlement of the “file” or “matter” as a whole. Both sides understood the benefits and advantages of settling early, and concluding the matter in its entirety. To an objective observer, they did so.

[41] While the above conclusion makes it unnecessary to consider the repudiation issue, a word or two is warranted. While the chambers judge cited proper authority in Fieguth in relation to repudiation, he incorrectly applied that authority. The judge concluded that the mere tendering of documents with terms that have not been agreed upon can constitute repudiation. That is an error. As set out above, in Fieguth Chief Justice McEachern said at p. 70:

…One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in the circumstances.

[42] This passage continues to be a correct statement of the law and to accord with sound practice.

I repeat my advice that the lesson in this case is to make sure that when you give your lawyer settlement instructions understand that he/she can make a binding commitment on your behalf based on these instructions.  Better yet, if you don’t know your lawyers negotiation tactics consider asking him or her to negotiate on a non-binding basis giving you, the client, the final say when the claim settlement paperwork is presented to you.

More on Formal Settlement Offers – Relevance of Insurance and a Novel Use of Rule 37B

Written by admin on . Posted in Settlement Law, Uncategorized. 44 Comments on More on Formal Settlement Offers – Relevance of Insurance and a Novel Use of Rule 37B


In my continued efforts to write about the development of Rule 37B (the rule that deals with costs consequences after a party beats a formal settlement offer at trial) two cases were released this week further interpreting this rule.
The first case (Ostiguy v. Hui) the Plaintiff was injured in a 2003 BC car crash.  She ultimately represented herself.  In the course of the lawsuit ICBC made a formal settlement offer under the old Rule 37 for $30,000.  The Plaintiff did not accept this offer and went to trial.  The Jury awarded the Plaintiff $10,000.   The Defendants brought a motion for costs.
After addressing a technical issue about the offer’s general compliance with the old Rule 37 Mr. Justice Williams decided that the offer was capable of triggering costs consequences under the new Rule 37B.  The Court went on to award the Defendant 60% of their costs from the time that liability was admitted onward.  In reaching this decision the Court held that whether the Defendant was insured with ICBC was not to be considered (an issue the BC Supreme Court cannot agree on and needs to be addressed by the Court of Appeal).
The Court made the following notable comments:
[68] I have no knowledge as to the circumstances of the defendants; I will proceed on the basis that they are ordinary people of ordinary means. I should note parenthetically that, although they were represented by an insurer, it is their circumstances and not those of the insurer which are to be considered…

[71] In this case, the costs which the plaintiff is liable to pay are substantial. That is attributable in significant part to the fact that this litigation dragged on considerably. The plaintiff hired and subsequently discharged two different lawyers before proceeding to act for herself. There were a number of delays. Costs have mounted.

[72] The law is clear that sympathy is not a basis to determine the outcome of matters such as this. Nevertheless, it is quite disconcerting to see the plaintiff’s award of damages for her injury completely obliterated and overshadowed by a costs obligation, and for the consequences in fact to go further, to leave the plaintiff with a huge bill to pay as well.

[73] At the same time, the Court must be cautious that the sound and basic principles that underlie the costs regime are not simply disregarded because the plaintiff chose to represent herself and chose to proceed as she did.

[74] In the final result, the matter requires a balancing of a number of considerations and a significant application of judgment to try and fashion an outcome that is fair in the circumstances. Approaching the task in that fashion, I have decided as follows:

(a)      The effective date of the Offer will be July 14, 2008, when the defendants advised the plaintiff that liability was being admitted.

(b)      Up to July 14, 2008, the plaintiff is entitled to recover from the defendants her costs and disbursements.

(c)      For the time period following July 14, 2008, the defendants are entitled to recover from the plaintiff their disbursements and 60% of their costs.

For my readers not familiar with the potential extent of cost consequences I should point out that on these findings there is a good chance that the Plaintiff, despite being awarded $10,000 by the Jury, would end up owing ICBC money.  When preparing for trial it is imperative that parties consider the potential consequences of formal settlement offers.

________________________________________________________________________________________________

The second case released this week was interesting because the Defendant made what appears to be a novel use of Rule 37B.  Usually parties restrict formal settlement offers to the issues to be addressed at trial.  In this week’s case (Moro v. El Mantari) the Defendant used Rule 37B in a Chambers application.

The parties could not agree on a lot of issues in the lawsuit.  Prior to trial the Parties brought cross motions to be decided in Chambers.  Prior to this pre-trial hearing the Defendant made a formal settlement offer under Rule 37B asking that the Plaintiff consent to various aspects of their motion.

The Defendant was largely successful in Chambers.  The Court was asked to award the Defendant double costs for Chambers because of the formal offer.  In the first case that I’m aware of using Rule 37B in this fashion Mr. Justice Chamberlist agreed that it was a permitted use of the Rule.  Specifically the Court held as follows:

[18] The defendant submits that it should be entitled to double costs on the basis of its offer to settle to the plaintiff made on June 26, 2009.  At that time the defendant asked the plaintiff to consent to items 1, 4, 6, 7, 8, and 10 of her notice of motion.

[19] The fact is that R. 37 has since 2008 been amended by deleting the subrules that an offer to settle did not apply to interlocutory proceedings.  The overriding fact is that there must be substantial success.  ..

22] Thus R. 37B(4) permits the court to consider an offer to settle when exercising the court’s discretion in relation to costs.

[23] As a result, the fact that the defendant has failed to meet the terms of the offer to settle will no longer necessarily mean that she would be deprived of her double costs.  In various decisions of this court it would appear that an issue which has been discussed in many cases is whether the offer to settle is one that ought reasonably to have been accepted (R. 37B(6)(a))….

[26] The enactment of R. 37B so that it now applies to interlocutory applications as well as trial, demonstrates the purpose of the new rule is to allow an offer to settle to be made, and if I were to follow the plaintiff’s position it would completely ignore the important deterrent function of the rule…

[32] In this case the offer to settle was made on June 26, 2009, and I find that the defendant was substantially successful.  The defendant shall have her costs of her attendance before me on August 27 and 28, 2009, as calculated in accordance with R. 37B, namely double costs.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as these retain their value as precedents.

More on Rule 37B; Settlement Offers, Acceptance and the Discretion of the Court

Written by admin on . Posted in Civil Procedure, Settlement Law, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether the BC Supreme Court has discretion to make costs awards after a formal settlement offer is accepted that specifically addresses costs consequences.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC collision.  He sued for damages.  The defence lawyer (instructed by ICBC) made a formal offer to settle the case for $75,000 plus costs up to the time that the offer was made with the Defendant being entitled to costs thereafter.  (this offer was made under the old Rule 37 which has now been repealed).
The Plaintiff initially dismissed the offer and continued in the lawsuit.   Three days before trial the Plaintiff accepted the offer.  The parties could not agree on the costs consequences.  The Plaintiff argued that Rule 37B (the rule that governed at the time of acceptance) gave the Court discretion to award her costs up to the date the offer was accepted.   Mr. Justice Verhoeven disagreed and held that when a settlement offer is accepted that specifically spells out the costs consequences there is no discretion for the Court to exercise under Rule 37B.  The Court provided the following reasons:
[28] But it has also been held that a settlement agreement containing terms as to payment of costs leaves the court with no room for the exercise of discretion pursuant to Rule 37B:  Buttar v. Di Spirito, 2009 BCSC 72 at para. 17..

[30] Madam Justice Gerow held that the court had no discretion to award costs in the matter before her. She stated at para. 11:

[11]      Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer a discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[31] On this basis, where a party has specified the costs consequences of acceptance of its offer to settle, within an offer to settle to which Rule 37B applies, and a settlement agreement results in accordance with the offer, the court does not retain a discretion to depart from the terms of the agreement.

[32] Put another way, it remains open to litigating parties to make an offer to settle within the meaning of Rule 37B and to specify the costs consequences of acceptance of the offer. In my view this is a positive result. It allows the parties to create their own bargain. It provides for certainty, and avoids the need for applications to court where a settlement agreement is reached, while preserving the court’s discretion in cases where no settlement occurs…

[37] In my view the agreement that the parties made was unambiguous. The defendants’ offer was clear in relation to the costs consequence of acceptance; the defendants would pay the costs until the date of the offer, and if the plaintiff were to accept the offer after that date, then the defendants would be entitled to costs after that date.

[38] After July 1, 2008, when the new rule came into effect, the defendants’ offer remained open for acceptance in accordance with its terms. The defendants had not withdrawn it or amended it. The new rule affected the costs consequences in the event that the offer was not accepted, and the court went on to render a judgment. That did not occur…

[61] The plaintiff will receive costs in accordance with Appendix B, Scale B, for the time leading to delivery of the defendants’ offer to settle. The defendants will receive costs following that date. No argument was presented to me that there should be any distinction between the tariff items and disbursements. The applicable costs will include both tariff items and disbursements.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

ICBC Injury Claims and Unfair Settlements – Getting The Adjusters Evidence

Written by admin on . Posted in Civil Procedure, Settlement Law, Uncategorized.


Buyer’s Remorse – that’s the feeling of regret people sometimes get after making a big purchase or an important decision.  When people settle their ICBC Injury Claim they sometimes get buyer’s remorse.  They can regret the settlement and wish they could undo it.
In most circumstances an ICBC Injury Settlement can’t be set aside after a full and final release has been signed.  Sometimes though, in circumstances such as fraud or unconsionability, these settlements can be undone.
Reasons for judgement were released today dealing with an interesting issue in the context of a case alleging an unfair ICBC settlement.   In today’s case (Coates v. Triance) the legal issue was whether a Plaintiff could examine the ICBC adjuster under oath before the trial began to discuss the circumstances of a supposed settlement.
The Plaintiff was involved in a motor vehicle accident in 1999.  In May of 2000 the plaintiff apparently signed a full and final release.  The Plaintiff was 19 at the time.  The Plaintiff later sued the alleged at fault motorist.  That motorist was insured with ICBC.  In the Statement of Defence the defendant stated that the claim was already settled.  The Plaintiff responded that the release should be set aside because the “settlement was manifestly unfair and unconsionable”.
As the lawsuit progressed the Plaintiff’s lawyer wished to examine the ICBC adjuster involved in the settlement discussions under oath.  The ICBC adjuster refused and a Court motion was brought to compel the examination.  The motion was granted and the Court ordered that the ICBC adjuster undergo a pre-trial examination to canvass the details of the supposed settlement.  The highlights of Madam Justice Griffin’s reasons were as follows:

[5] Thus, a key factual issue in this case on the pleadings is whether a settlement and release procured by ICBC from the plaintiff, when she was 19 and unrepresented, should be set aside.  As mentioned, the witness, Ms. Lo, is the adjuster who procured the settlement, and the plaintiff’s position is that she acted inappropriately.

[6] Ms. Lo was a participant in a key factual event in question in this case.  What she knows and does not know about the circumstances of her dealings with the plaintiff and the settlement and release relates to a material issue at trial: the enforceability of that settlement and release.

[7] Sometimes it is preferable to deal with a non-party witness by written questions and answers.  But the fact that a witness is willing to proceed this way is not a complete answer to an application for a Rule 28 examination.  In this regard, I refer to the case of Cheema v. Kalkat, 2009 BCSC 736.

[8] Here there is evidence of the questions posed in writing and the written answers.  There were 200 questions.  I find the answers provided by Ms. Lo to be not responsive in a way which will help the plaintiff learn sufficient information to be able to assess the merits of the issue of whether or not there was an enforceable settlement and release.  The responses provided by Ms. Lo leave many questions unanswered on the material factual issues to which she was a witness.  Many responses are superficial and unhelpful.

[9] I conclude that if the plaintiff does not have the opportunity to examine this witness, the plaintiff cannot assess her case before trial and therefore cannot form an informed view and possibly settle the case, and the plaintiff could be taken by surprise at trial…

[14] There is no question that an examination of Ms. Lo will assist in a determination of the proceeding on the merits.  She is a key witness to events that form a central issue in the case.

[15] There is also no question that an examination of her will be just.  She is not prejudiced in any way.  Her involvement in the material events arose in the course of her employment with ICBC, which continues to be her  place of employment. Her evidence on these matters will not be personally embarrassing or tread on an area of her own personal privacy.  On the other hand, the plaintiff could be prejudiced if she is not allowed to investigate and explore Ms. Lo’s evidence in advance of trial.

[16] Here, I consider that a Rule 28 examination will be the most speedy and inexpensive way of proceeding to determine this case on its merits.  The written questions and answers exchanged already clearly reveal to me that the questions for Ms. Lo involve a scope of examination that is appropriate but that is most efficiently conducted by oral examination rather than by written questions and answers.  I am satisfied that more time will be taken up by lawyers drafting further written questions and drafting written responses than would be taken up by a Rule 28 examination…

[21] In this case, the most efficient way of proceeding so as to allow the merits of the issues in the case to be ultimately determined, would be by way of a free-flowing examination of the witness as counsel for the plaintiff sees fit, rather than requiring the plaintiff to follow the court’s checklist of acceptable and unacceptable questions.

[22] As noted in Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1977), 3 B.C.L.R. 90 at 100, a Rule 28 examination may extend to all that is relevant generally to all parties in the action.

[23] Therefore, in allowing the plaintiff’s application, I make no ruling on the acceptability of particular questions in the previously provided list of questions or on the validity of any objections to those questions.

Now to Cross-Reference:  Do the New BC Supreme Court Civil Rules change the law relating to pre-trial examination of witnesses?  Not really.  Rule 28 is reproduced almost identically in the New Rules and can be found at Rule 7-5.  The requirements mirror the current wording of the rule so this case ought to retain it’s value as a precedent after the New Rules come into force.

ICBC Injury Claims, Lawyers and Trials

Written by admin on . Posted in Uncategorized.

Many people that are unhappy with an ICBC settlement offer seek the advice of a personal injury lawyer.  Often times, however, people don’t consult with a lawyer because of the mistaken belief that if they hire a lawyer they will have to go to trial to resolve their injury claim.  Some revealing statistics were released today showing just how few ICBC Injury Claims proceed to trial, even when claimants are represented by a lawyer.
Today the Office of the Information & Privacy Commissioner released their report into the Investigation Into Disclosure of Jurors’ Personal Information by ICBC.
In the body of the report statistics about the number of ICBC Claims settled in 2008 were revealed.  Specifically page 4 of the report noted that “An example of the number of claims handled by the division in a given year is available from 2008 when approximately 674,500 claims were settled.  Individuals were represented by lawyers in approximately 21,500 of settled claims.  Only 299 of the claims proceeded to trial and only 37 were jury trials.”
If you do some quick math on the above figures you will see that only 1% of the people that hired lawyers and resolved their ICBC claims in 2008 actually went to trial.  In other words, one in one hundred people who hired a lawyer for their ICBC Claim went to trial.
While there are many reasons why injury victims may choose not to consult with a lawyer these statistics show that the fear of an inevitable trial should not be one of them.

Disc Herniation, Nerve Damage and ICBC Claims

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today compensating a Plaintiff injured in three separate BC car accidents, the first in August, 2002, the second in December, 2002 and the third in June 2003. At trial the issues were the extent of the plaintiff’s injuries and whether these were caused by the car accidents or other life events.
A frequent tactic of ICBC defence lawyers is to call evidence to cast doubt on the connection between motor vehicle accidents and trauma and find other explanations for injuries. In this case the defence lawyer pointed to a car accident that the plaintiff was at fault for and a work incident where the plaintiff aggravated his back as potential causes for the Plaintiff’s problems.
In ICBC claims a Plaintiff has the burden of proving the extent of his injuries and their connection to the car accident. If defence evidence can effectively point to another explanation an ICBC claim can be dismissed.
In this case the injuries were fairly serious. An MRI revealed a ‘tear in the annulus at L5/Ss and a disc bulge at L4/5 wit impingement of the L5 nerve root‘.
The court found that in cases where there are multiple potential causes of injury ‘it is most helpful to have the opinion of (the Plaintiff’s family doctor) who treated the plaintiff throughout and has a long history and detailed knowledge of the Plaintiff as a patient.’ The court found the GP’s findings of objective injury persuasive including ‘muscle spasm, reduced range of motion, and visible hypertonicity of the musculature following each of the three motor vehicle accidents’.
The court assessed damages for all three accidents globally. The court concluded that “the Plaintiff has, since December 7, 2002, experienced functional limitations due to his low, mid back, and neck pain with referral pain from the low back to his leg. The Plaintiff is unlikely to achieve a substantial improvement in future, but exercises and care will assist in controlling pain and flare-ups‘. As a result of this finding the court awarded $70,000 for non-pecuniary damages (pain and suffering).
Addressing past wage the court found that there was some failure of mitigation on the Plaintiff’s part. The Plaintiff’s claim for past wage loss exceeded 5 years. The court found that he could have returned to work in some capacity during this time. In all $50,000 was awarded for this loss.
The court also awarded $75,000 in damages for ‘loss of future earning capacity’ finding that

[50] There is no doubt that the plaintiff’s income earning capacity is affected by his chronic pain and physical limitations and disabilities. The plaintiff is by education and experience limited to low income, minimum wage types of employment, although that is reflective of his actual earnings history prior to his injury and disability.

[51] The pool of low income jobs available to the plaintiff is however much diminished as he can no longer work at jobs with a physical component which he can no longer meet. The plaintiff is 49 years old and increasing age will combine to impede access to the work for which he remains qualified.

[52] The plaintiff’s health may be stressed more than the average person requiring that he take more time off work. He may in future be more suited to only part time or work of a sporadic nature.