The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.
In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages. Fault was admitted by the Defendants and the matter was set for a 10 day trial. The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.
The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy. The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payableforthwith”
The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“. In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a leg amputation caused by a vehicle collision.
In today’s case (Bye v. Nelson) the plaintiff was operating a dirt bike which was involved in a collision with an ATV operated by the Defendant. The collisions caused severe injuries including a left leg amputation.
In assessing non-pecuniary damages at $220,000 Madam Justice Choi provided the following reasons:  …Not in dispute is that Mr. Bye’s dirt bike and Mr. Newman’s ATV collided near a curve in the road. Both vehicles were damaged, and Mr. Bye was left with a number of injuries including a fracture to his neck and multiple fractures to his legs. Although Mr. Bye was rushed to the hospital, his injuries required a through-knee amputation of much of his left leg.
 Mr. Bye is a young man. He was 35 years old at trial and 31 at the time of the accident. He was an active man who enjoyed various recreational pursuits. He had been employed by Teck Metals as a carpenter commencing February 2010. It was a job he loved, which paid him handsomely.
 The injuries from the accident have changed his life dramatically forever. He now suffers from daily pain and fatigue as a result of the amputation and is permanently disabled from returning to carpentry work and to many of his recreational activities. He testified that, before the accident, he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming, and that his injuries have either cut off, or severely limited his enjoyment of these.
 Additionally, Mr. Bye is now a father, with his son born during the litigation, in 2016. While he is still able to play with and care for his son, many of these interactions are made more difficult by his injury. He testified to the difficulties of lowering himself to the floor to spend time with his son…
 Mr. Bye has been dealing with his injuries since he was 31. He will continue to face difficulties for the rest of his life. Considering all the evidence, the Stapley factors, and case law submitted by the parties, I conclude an award of $220,000 is fair and appropriate in all the circumstances.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary loss at $110,000 for chronic vertigo symptoms.
In today’s case (Wright v. Mistry) the Plaintiff was involved in a 2006 collision. Liability was disputed but the Court found the Defendant fully at fault.
The Plaintiff suffered chronic vertigo and an exacerbation of pre-existing depression. In assessing non-pecuniary damages t $110,000 Madam Justice Choi provided the following reasons:
 While each case depends on its own facts, the award should be fair and measured against other similar cases. In Stapley v. Hesjlet, 2006 BCCA 34 at paras. 45-46, the Court of Appeal set out a non-exhaustive list of factors to be considered in making this award. These include the age of the plaintiff; the nature of the injury; severity and duration of the pain; disability; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. The plaintiff’s stoicism should not penalize the plaintiff.
 Mr. Wright was 56 at the time of the accident and was 65 at the time of trial.
 Mr. Wright suffered a number of injuries in the accident. He had soft tissue injuries that resolved within six months of the accident. He developed vertigo which has lasted for ten years and is likely a permanent condition. In addition, he has ongoing testicular pain from a fall related to the vertigo. His impairment also caused exacerbation of his pre-existing depression.
 Mr. Wright noted that his vertigo has robbed him of much of his enjoyment of life, especially by limiting how much time he can spend with his grandson, and how they can play together…
 I find the facts in Moukhine to be most helpful here. Moukhine considered a 53- year-old computer programmer who developed Visual Vestibular Mismatch after a motor vehicle accident. Madam Justice Watchuk awarded $90,000 for general, non-pecuniary losses.
 Non-pecuniary awards will always turn on a complex factual matrix. I find, considering all of the circumstances, that $110,000 is fair and just compensation for Mr. Wright’s loss.
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for post traumatic stress disorder as a result of a vehicle collision.
In today’s case, (Harmati v. Williams) the Plaintiff was involved in a 2011 rear end collision that the Defendant accepted fault for. She suffered PTSD and a generalized anxiety disorder following the crash and the Court accepted these conditions were caused by the collision. In assessing non-pecuniary damages at $100,000 Madam Justice Choi provided the following reasons:  Dr. O’Shaughnessy was steadfast in his opinion when he testified that Ms. Harmati’s PTSD was as a result of the accident. He wavered on cross examination that the generalized anxiety was a result of the accident. I accept Dr. O’Shaughnessy’s testimony and diagnosis and found him to be a forthright and helpful expert witness…
 On a balance of probabilities, I find that Ms. Harmati’s present disability, both physical and psychological, is a result of the accident. I accept Dr. O’Shaughnessy’s opinion that the PTSD was triggered by the accident, and I am satisfied that there is a substantial connection between the injuries Ms. Harmati suffered in this accident and her present symptoms sufficient to impose liability on the Defendants. Just as the Defendants are liable for any physical injuries caused to Ms. Harmati, they are too liable for any psychological injuries that arose from this accident.
 I find that but for the accident, Ms. Harmati would not have sufferedfrom pain in the neck, head and back or post-traumatic stress disorder. While Ms. Harmati may have had a more extreme reaction to the accident than most, she is better described as a “thin skull” than a crumbling one. The injuries she has suffered were not inherent in her original position and would not have occurred had the accident not happened…
 A few lay witnesses testified as to Ms. Harmati’s ongoing limitations.
 Mr. Gosling testified that Ms. Harmati is responsible for most of the cleaning, but that they don’t keep a clean house, and that Ms. Harmati is responsible for most of the cooking. She does more now than she did when they first cohabited because she is no longer working. I found Mr. Gosling a measured and careful witness, whose evidence I found credible.
 Mr. Gosling testified that Ms. Harmati does not want to be a burden, so she will insist on performing tasks that then require her to rest, such as carrying groceries and pots of boiling water.
 Mr. Derek Carswell worked with Ms. Harmati at Electronics Art. They were both hired on the same day in 2010 and became friends. Prior to the accident, he described her as “bubbly, enthusiastic and lots of energy”. After the energy, he testified that she was “subdued, lacking vital energy”. He said they played video games with their respective partners and that after the accident, she could not play video games for long because she needed to rest and due to nausea. Mr. Carswell testified that some video games are virtual reality games, involving wearing a headset and a screen which wraps around your face, and is an immersive gaming experience. Ms. Harmati has been unable to participate in this type of game since the accident…
 Having considered the evidence and cases, it is my view that an award of non-pecuniary damages in the amount of $100,000 is appropriate.
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.