Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.
This is one of the crispest judgements I have read in quite some time. I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.
The Plaintiff was injured when she was 4 years old. She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign. The accident was in 2002 and the claim finally went to trial in 2008. For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline. In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday. One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.
In this case most of the Plaintiff’s injuries were not disputed. She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.
What was at issue was headaches. The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident. The defendant said there are other potential causes for the headaches such as migraines or other trauma. It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial. Usually the court hears competing theories about the extent of injury and the cause of injury. (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)
The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”
Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement. He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.
NOTE: This case was overtunred on appeal on February 19, 2009, see my blog post of February 19 to read about this. Reasons for judgement were released yesterday by the BC Supreme Court determining fault for a 2004 motor vehicle collision which occurred in Vancouver, BC involving a BMW and a bicyclist.
The collision happened at the intersetion of Main Street and East 2nd Avenue in Vancouver, BC. The Plaintiff cyclist was attempting to go through the intersection when the Defendant motorist turned left and collided with him. The light was green and the cyclist did enter the intersection “in accordance with traffic signals” when the Defendant turned into him (in other words, on a green light). The impact was significant as the Plaintiff “hit the passenger window of the car with enough force to smash the glass and he suffered personal injuries“.
Who was at fault for this intersection crash was the issue to be decided at trial. The trial proceeded by way of ‘summary trial’ pursuant to Rule 18-A of the BC Supreme Court Rules. For those not familiar with ‘summary trials’ they are commonly referred to as ‘paper-trials’ because no witnesses testify in court, rather the lawyers present their cases through sworn affidavit evidence. There has been much criticism of this rule over the years and BC personal injury lawyers seldom use this rule to advance ICBC claims to trial.
This case is interesting for Madam Justice Griffin’s analysis in determining fault. The 5 main factors she considered in reaching her conclusion were
1. The speed of the car
2. The speed of the bicycle
3. The light conditions
4. The location of the bicyle whent he car began its left turn
5. The response time of the bicycle rider
The key findings of fact made at trial were that “the Plaintiff was not speeding and was properly riding his bicycle in the correct lane, the curb lane, in accordance with the traffic signals. It is undisputed that (the bicyclist) was in breach of the Motor Vehicle Act by failing to have a headlamp or reflectors on his bicycle….Given that (the bicyclist) had no headlamp or reflectors on his bicycle, (he) was also negligent in wearing dark clothing insread of bright and reflective clothing…(he) had no opportunity to avoid the collision. Even though the BMW was clearly poised to mnake a left turn and had its left turn signal activated, there was no reason for (him) to expect that the BMW would turn in front of him. He would have seen that it had given way to other traffic.”
Madam Justice Griffin concluded that “the bicyclist presented an immediate hazard when the BMW began to turn the vehicle to the left…..(the driver of the BMW) should have considered (the bicylcist) to be an immediate hazard and should not have proceeded with the turn until (the bicyclist) was safely through the intersection. As such (the driver of the BMW) was negligent.”
When both parties are at fault for a collision BC courts must determine the degrees of fault as between them. This is required by the BC Negligence Act. Madam Justice Griffin ruled that the Plaintiff was 75% at fault for the accident and the motorist was 25% at fault. What this means is that the Plaintiff would only be entitled to recover 25% of the value of his injuries from ICBC in his tort claim.
In reaching this conclusion Madam Justice Griffen ruled that
The streets of Vancouver are shared by drivers and cyclists. Those who use the streets must anticipate each other and the limitations inherent in each other’s response time and visibility.
The plaintiff took a very big risk by riding his bicycle in the dark without any form of illumination or reflection. He ought to have appreciated the difficulty that drivers of motor vehicles have in seeing fast-moving dark objects. While he may have counted on the street lights to illuminate him, he was extremely careless and showed little concern for safety.
In deciding to make a left turn across the intersection, Mr. Schwartz should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane.
In conclusion, I apportion fault for the accident 75% to the plaintiff and 25% to the defendant.
This case is a difficult precedent for any BC cyclist injured in a BC car crash who either fails to wear reflective clothing or fails to have a headlamp or reflectors on their bicylce. It may be troubling to know that a cyclist can be found largely at fault for a collision even though he is “not speeding” “riding in the correct lane and in accordance with traffic signals” who has “no opportunity to avoid the collision” and have “no reason to expect (a car )to turn in front of him“.
What is striking about this case is the degree of fault attibuted to the cyclist despite all the above findings. This case serves as a stark reminder that if a cyclist fails to wear refelctive clothing or a headlamp, it may not only increase the risk of collision, but can drastically reduce the settlement value of an ICBC claim following a collision.
If you are an injured cyclist or pedestrian in a BC car crash and at the time did not have ‘any form of illumination’ you should be prepared to address the results of this case in your claim settlement negotiations with ICBC.
Do you have questions about this case, or about a BC crash involving a cyclist or pedestiran, or the issue of fault in an ICBC claim? Are you looking for a free consultation with an ICBC claims lawyer? If so, click here to arrange your free consultation with ICBC claims lawyer Erik Magraken.
In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.
The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.
The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.
The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.
This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.
The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.
In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”
Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.
The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.
In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.
Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.
Expert witnesses play a vital role at the trial of ICBC injury claims. Often judges or juries require the input of a qualified expert to help make sense of technical facts. No where is this more obvious than in ICBC injury claims where doctors give the court opinion evidence with respect to injuries, their causes, their treatment and prognosis.
Expert witnesses, doctors included, have a fundamental duty to be neutral and independent. It has been held that “expert evidence presented to the court should be, and should be seen to be, independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters withing his expertise.”
Experts owe the same duty to the court whether they are testifying on behalf of the Plaintiff, the Defendant or if they have judicially appointed. However, in some cases, experts hired by one side of a lawsuit forget or ignore their duty and engage in active advocacy. In other words, they go out of their way to fight for one side in the lawsuit. This is indeed a shameful development which does nothing but cloud the issues in a lawsuit.
When experts cross the line, they run the risk of having their opinions totally disregarded or declared inadmissible. A great illustration of this can be found in the recent judgment of The Honourable Madam Justice Martinson in which she declared that the report of a psychiatrist hired by the Defendants in a lawsuit was inadmissible.
She concluded that the expert stepped into the shoes of the jury while advocating for the Defendant. He “stepped outside of his area of expertise, commented on matters of general knowledge that the jury can determine, provided many opinions on credibility and made editorial comments, did not seperate his opinions from the fracts and assumptions he relied on, and engaged in advocacy“.
The judge went on to exclude the psychiatrists report from trial on the basis that he crossed the line and engaged in advocacy. In ruling the psychiatrist’s evidence inadmissible Madam Justice Martinson concluded that the doctor had a “lack of understanding of his role as an expert witness“. Has ICBC sent you to a doctor that was not impartial and ‘crossed the line”?If so you can contact the author of this article for a free legal consultation.
If you would like further information or require assistance, please get in touch.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.