Tag: no-fault benefits

BC Supreme Court Finds Botox Covered Under ICBC's Part 7 Benefits


It is not uncommon for physicians to occasionally prescribe Botox Injections to treat symptoms of pain following motor vehicle collisions.  The Botox itself is not covered by the BC Medical Service Plan and people often turn to ICBC for funding of this expense.  Two recent decisions have addressed whether ICBC is obliged to fund Botox therapy when prescribed by a physician.
In 2008 Mr. Justice Macaulay provided reasons for judgement (Tiessen v. ICBC) finding that Botox is indeed a covered benefit under ICBC’s No-Fault Plan. The Court provided the following reasons:

[]           Counsel for ICBC seeks to impose too high a standard for proving that a recommended treatment is necessary.  I am satisfied that the treatment is necessary in the sense that the plaintiff needs short and long term pain relief for his lower back.  While it is impossible to predict that this particular treatment will succeed, it is nonetheless, on the evidence before me, a necessary physical treatment within the meaning of the section.

[]           There is no evidence to suggest that the proposed cost of the staged treatment is unreasonable.  The fact that the particular treatment is not covered by MSP does not establish that the cost is unreasonable.

[]           I am persuaded that the plaintiff is entitled to a declaration that he is an insured person to be benefited pursuant to Part 7 of the Regulations and a further declaration that he is entitled to receive medical rehabilitative benefits pursuant to the contract of insurance with the defendant under Policy Number 639 DER for the cost of Botox injections as recommended by Dr. Quartly.

Further reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that Botox is a benefit covered under Part 7.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured in a 2004 motor vehicle collision.  A jury awarded the Plaintiff damages including just over $60,000 for the cost of her future medical care.   The court was then asked to reduce the award to take into account the future expenses that were covered directly by the Plaintiff’s Part 7 Benefits to avoid “double recovery”  (You can click here to read more about this topic).  Madam Justice Ross ultimately made a modest deduction to the Jury’s award.  Part of the deduction reflected the cost of future Botox injections which the Court accepted was a responsibility of ICBC’s under the Plaintiff’s Part 7 Benefits.
Today’s case coupled with Mr. Justice Macaulay’s 2008 decision make it clear that Botox can be covered under people’s own policies of ICBC Insurance.

MPIC No-Fault Benefits Not Available to British Columbians Injured in BC By MPIC Insured Drivers


Reasons for judgement were released today deciding the extent of no-fault benefits the Manitoba Public Insurance Company (MPIC) has to pay when a driver insured by them injures a person in British Columbia.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was considered a pedestrian and was struck by a tractor trailer driven by an individual insured with MPIC.  The collision occurred in British Columbia.  The Plaintiff was severely injured but ICBC and MPIC did not agree as to who had to provide coverage.
Ultimately a lawsuit was brought and Mr. Justice Meyers ordered that both MPIC and ICBC had to provide the Plaintiff with benefits with MPIC being the primary insurer.  (You can click here to read my former post summarizing this previous decision)
Unfortunately the legal positioning did not end there.  Manitoba is a true no-fault jurisdiction meaning that people injured in Manitoba motor vehicle collisions have had their rights to sue for damages severely restricted.  As a trade off they have a relatively generous scheme of no-fault insurance benefits.  In today’s case the Plaintiff argued that MPIC had to provide the Plaintiff with the more robust MPIC benefits.  MPIC disagreed arguing that their obligation to pay no-fault benefits is governed by the lesser BC limits.  Ultimately Madam Justice Brown sided with MPIC and ruled that a British Columbian injured in BC by an MPIC insured driver is not entitled to claim the more generous MPIC no-fault benefits.  Madam Justice Brown provided the following reasons:

[16]         The issue before me turns on the proper interpretation of the Power of Attorney and Undertaking filed by the Manitoba Public Insurance Corporation.  In this case, the relevant provisions of the undertaking provide that the Manitoba Public Insurance Corporation undertakes to:

A. … appear in any action … against it or its insured …

C. … not to set up any defence to any claim … which might not be set up if the contract had been entered into in accordance with the laws relating to motor vehicle liability insurance contracts or plan of automobile insurance in the Province … and to satisfy in a final judgment rendered against it or its insured by a court … in respect of any kind or class of coverage … up to the greater of

(a) the amounts and limits for that kind or class of coverage … provided in the contract or plan, or

(b) the minimum for that kind or class of coverage … required by law in such province ….

[17]         There is no issue that the coverage for the kind or class of insurance, being no-fault benefits is greater in Manitoba.  The question is whether its undertaking makes MPIC liable to pay that amount to Ms. Schuk.  In my view, it does not.  The undertaking provides that MPIC will satisfy any final judgment rendered against it “in respect of any kind or class of coverage provided under the contract or plan”, and “in respect of any kind or class of coverage required by law to be provided under a plan” in British Columbia.

[18]         In this case, there is no coverage provided under the contract or plan to Ms. Schuk for no-fault benefits under Part 2 of the Manitoba Act.  To qualify for that coverage, a person must be a Manitoba resident or injured in an accident in Manitoba (s. 74).  As MPIC argues, the Manitoba standard automobile policy does not incorporate PIPP benefits.  PIPP benefits are available based upon statutory entitlement.

[19]         Here, Section B of the contract provided accident benefits “as required by law”.  The Manitoba legislation provides PIPP benefits only to those resident in or injured in Manitoba.  Those benefits are not “required by law” for one, like Ms. Schuk, who is not a resident of Manitoba and not injured in Manitoba.  The driver of a Manitoba licensed vehicle is not required to carry PIPP coverage.  The Section B endorsement carried a charge of $950 for “accident benefits coverage for those drivers not eligible for Personal Injury Protection Plan (PIPP)”.  I accept the submissions of Manitoba Public Insurance that this would be drivers who were not Manitoba residents and were not injured in Manitoba.

[20]         Ms. Schuk did not have PIPP benefits coverage under either the contract or the plan.

[21]         The other portion of MPIC’s undertaking, that is not to set up any defence which might not be set up if the contract had been entered into in the Province of British Columbia, also does not assist the plaintiff.  ICBC could certainly have set up the defence that it does not provide benefits under the Manitoba legislation; that Ms. Schuk does not qualify for PIPP benefits.

A Suggested Change at ICBC To Benefit British Columbians


Whether you are a plaintiff lawyer, a defence lawyer, an adjuster or someone insured with ICBC I think we can all agree that there is one ICBC practice that could change to better serve British Columbians.  I’m talking about the practice of assigning the same adjuster to deal with Tort and No-Fault Benefit claims.
As I’ve previously discussed, ICBC usually fulfills two roles in the context of injury claims.  The first is that they insure people for “no-fault” benefits.  If you are insured, whether or not you are at fault for a collision ICBC provides some basic coverage for medical/rehabilitation expenses and a modest wage loss benefit in the event of total disability.  If you are seeking coverage ICBC assigns an adjuster to process your claim no-fault benefits.
At the same time ICBC usually provides coverage to the at fault party for any claims made against them.  When a faultless party is injured and wishes to be compensated for the full extent of their damages they make a tort claim.  ICBC assigns an adjuster to process these tort claims.  The difficulty, however, is that ICBC typically assigns the same adjuster to deal with the faultless parties claims for no-fault benefits and to process the tort claim made against the at fault party.
As a business decision ICBC’s policy makes sense.  Why assign two people to look after various claims being advanced as a result of a single event?  It is more cost effective to get one adjuster to learn about the crash, the parties involved, the various injuries and the claims being advanced.  As a practical matter, however, one person cannot fulfill both these roles in a completely impartial way.
In reality adjusters processing a no-fault benefits claim have a very different duty compared to an adjuster processing a tort claim.  In a no-fault benefits claim the adjuster owes a duty to the injured party to provide them with their insurance benefits.  If therapies are required these should be covered.  If disability occurs wage loss benefits should be provided.
In tort claims, however, the adjuster owes a duty to the at fault party.  If claims are being advanced the at fault party will want those settled for as little as possible as the funds are paid from their coverage.  It is difficult to imagine how one adjuster can fulfill these competing duties fairly and impartially.  The conflicting duties create an inherent conflict of interest.  (You can click here to read an article providing a real world example of how this conflict can play out to harm the interests of a person injured through no fault of their own).
After reading this you may be asking yourself whether ICBC’s practice is lawful.  Unfortunately, the answer is yes.  This practice has been brought before the Courts and is tolerated.
However, just because a practice is accepted does not make it right.  Since the Courts are not able to correct this practice the ability to change is in the hands of ICBC.
The solution is simple.  ICBC can assign separate adjusters to deal with tort and no-fault claims.  Once done ICBC can set up internal ‘walls’ to prevent the adjusters from accessing each others files.  This would add more fairness to the application process for no-fault benefits.  This would also help ensure that information shared by a party with their insurer to receive medical treatment is not automatically disclosed to the agent of the person responsible for causing the injuries.  This is a proposed change, I hope, we could all agree on.
As always, feedback is welcome on this forum and I’d appreciate views from others about this topic, particularly views from people who feel these proposed changes would not be beneficial.

The Inability to Afford Therapy and the Duty to Mitigate Damages


As I’ve recently written, a Plaintiff has a duty to ‘mitigate‘ their losses after being injured otherwise the damages they are entitled to can be reduced.
The most common example of the ‘failure to mitigate’ defence comes up in personal injury claims where defence lawyers argue that a Plaintiff would have recovered more quickly and more completely had they followed through with all of the suggestions of their medical practitioners.  If evidence supporting such an argument is accepted then the Plaintiff’s award can be reduced.
What if a Plaintiff can’t afford to purchase all the therapies/medications recommended by their physicians?  Can their damage award be reduced in these circumstances?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this issue.
In this week’s case (Trites v. Penner) the Plaintiff, an apprentice plumber, was injured in a forceful rear end collision in 2005.  Fault for the crash was admitted by the rear motorist.  The trial focused on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries.  He followed a course of therapy in the months that followed and enjoyed some improvement in his symptoms.  During his recovery ICBC (the Plaintiff’s insurer for ‘no fault’ benefits) discontinued “funding for (the Plaintiff’s) efforts at rehabilitation.”
At trial the Defence lawyer argued that the Plaintiff should have followed through with these therapies in any event and that his damages should be reduced for failure to mitigate.   Madam Justice Ker disagreed and took the Plaintiff’s inability to pay for his therapies into consideration.  The Court provided the following reasons:

[209] Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses.  What is reasonable will depend on all the surrounding circumstances.  One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation.  As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own.  Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication.  All of these items had significant benefits to Mr. Trites but they also carried with them significant costs.  In the first half of 2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis.

[210] I find that in these circumstances, Mr. Trites’ decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable.  This is not a case where the plaintiff has refused to take recommended treatment.  Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them.  Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered.  I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time.  As Smith J. noted in O’Rourke v. Claire, [1997] B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment.”

[211] Accordingly, I find that the defence has not discharged its burden of establishing that Mr. Trites failed to mitigate his losses in this case.

You may be wondering if ICBC is allowed to, on the one hand deny a Plaintiff rehabilitation benefits, and on the other have the Defendant’s lawyer argue at trial that the Plaintiff should have pursued these benefits and therefor reduce the Plaintiff’s award.  The answer is yes and you can click here to read a previous article discussing this area of law, and here for the latest from the BC Court of Appeal on this topic.
Today’s case is also worth reviewing for the Court’s discussion of non-pecuniary damages and diminished earning capacity.
The Court accepted that the Plaintiff suffered moderate soft tissue injuries to his neck and back and these had a ‘guarded’ prognosis for full recovery.   $75,000 was awarded for his non-pecuniary damages and the Court’s reasons addressing this can be found at paragraphs 188-198.
The Plaintiff was also awarded $250,000 for diminished earning capacity.  He was an apprentice plumber and, despite his injuries, was able to continue to work in this trade in the years that followed the collision.  However he struggled in his profession and there was evidence he may have to retrain.  The court’s lengthy discussion addressing his diminished earning capacity can be found at paragraphs 213-239.

Gross vs. Net Special Damages At Trial in ICBC Claims

Special Damages are out of pocket expenses a Plaintiff incurs as a result of the fault of another.  In an ICBC claim some of the typical special damages are costs for therapies and medication.
When a tort claim goes to trial a Plaintiff is entitled to recover their special damages from the at fault party.  There is a very important exception to this in ICBC Claims, and that is if the Plaintiff’s special damages are covered by his own ‘no-fault’ insurance from ICBC an at fault defendant is entitled to reduce the amount of special damages by the amount the Plaintiff claimed or could have claimed under their own policy of insurance.  (You can click here to read a previous post of mine for more background on this topic)
At trial, then, should a Plaintiff advance a claim only for expenses that have not already been covered by ICBC or should they advance a claim for all of their out of pocket expenses?  Reasons for judgement were released today by the BC Court of Appeal addressing this.
In today’s case (Gasior v. Bayes) the Plaintiff was injured when his bicycle was struck by a vehicle.  At trial a Jury awarded the Plaintiff $488,500.  The trial judge then reduced portions of this award to account for ‘no-fault’ benefits the Plaintiff would be entitled to.
ICBC, on behalf of the defendant, appealed arguing that the trial judge was incorrect in some of her deductions.   The Defendant claimed that a Plaintiff has to advance all of their special damages at trial (including money already reimbursed by ICBC) so that a proper deduction can be made after the special damages are assessed.  The Court of Appeal disagreed and provided the following useful practice tip:
[17] The defendants argued that under the provisions of s. 25 of the Act, it was only appropriate for a plaintiff to advance a claim for all special damages (gross basis), allow the trier of fact to pass on this figure and make an award, and thereafter permit the defendant to deduct from such award all no-fault benefits previously advanced.  This methodology has some attraction on the basis of simplicity (and avoidance of the sort of confusion that seems to have bedevilled this case).  However, as pointed out by counsel for the plaintiff, when trying to conform to such methodology in a case before a jury, it becomes very difficult to avoid references to insurance and the insurer.  As well, it may be difficult for a plaintiff to become aware of all expenditures paid on a no-fault basis by the insurer.  If these hurdles could be satisfactorily overcome, the methodology argued for by the defendants may be preferable, but I consider that advancement of a special damages claim on a net basis can be an acceptable approach, especially in a jury trial.  That methodology which will most effectively avoid the possibility of any infringement of the rule against double recovery is to be favoured and I would leave it to the good sense of counsel and trial judges to seek to achieve such result in any given case.  Clear communications between respective counsel and the trial judge are essential for the achievement of such result.  I would note there was some deficiency in clarity of communication in this case.

Understanding The 2 Roles of ICBC – "Your" and "Their" Insurer

Here is a brief video I’ve uploaded to YouTube discussing ICBC’s dual role and some information you should know before you place your first call to ICBC after being injured in a BC motor vehicle accident:

As readers of this Blog undoubtedly know, ICBC is a British Columbia monopoly auto insurer which usually plays 2 roles in BC auto injury claims.  When you are injured by another BC motorist who is at fault and you and they are insured with ICBC, ICBC will not only need to process your claim for Part 7 Benefits but also process the tort claim you are making against the at fault motorist.   I hope the information covered in this video is of assistance.

The Importance of Pursuing Part 7 Benefits in an ICBC Injury Claim

I’ve previously written about the important role Part 7 Benefits play in ICBC Injury Claims. In short if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these the Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received.
This argument can be made by a Defendant in a lawsuit even if the injured person applied for the benefits and ICBC refused to pay them.  Reasons for judgement were released this week by the BC Supreme Court showing this principle of BC Injury Law in action.
In this week’s case (Sauer v. Scales) the Plaintiff was injured in a 2004 BC Car Crash and successfully sued the at fault motorist and was awarded damages of over $300,000 (click here to read my post discussing the trial judgement)
After reasons were pronounced the Defendant’s lawyer brought a motion to reduce a portion of the award as it covered damages for benefits that the Plaintiff could have received from ICBC under his own policy of insurance.  Specifically the motion was brought relying on Section 83 of the Insurance (Vehicle) Act which holds in part that “A person who has a claim for damages…who…is entitled to receive benefits respecting the loss on which the claim is based is deemed to have released the claim to the extent of the benefits
The Plaintiff argued that this application was an abuse of process because he applied to have the benefits paid from ICBC directly but the adjuster cut him off claiming that “the accident did not cause the injuries“.
As with most ICBC Injury Claims I presume the same adjuster that told this to the Plaintiff was also responsible for the defence of the Plaintiff’s lawsuit against the at fault motorist (click here to read more about this conflict of interest).    The Plaintiff argued that ” the onus is on the defendant to establish that a deduction should be made under s. 83(5) of the Act. …the defendant chose to interpret Part 7 of the Regulation in a manner which initially severely restricted the plaintiff’s claim, and subsequently interpreted his entitlement to include virtually all of the damages for cost of future care awarded to him by the Court.  In addition, the plaintiff says that ICBC ignored requests for particulars in the plaintiff’s Part 7 action, and directed the plaintiff to include Part 7 items in his tort claim.  The plaintiff submits that this is a case where ICBC took an extreme position on the plaintiff’s entitlement to Part 7 benefits, and then resiled from that position for the purpose of seeking a deduction from the judgment equalling the plaintiff’s cost of future care award.
Ultimately Mr. Justice Cohen agreed with the Defendant and held that ICBC’s refusal to pay for requested Part 7 Benefits under the Plaintiff’s policy of insurance does not prevent the ICBC appointed Defence Lawyer in the tort claim to argue that the benefits should have been paid.  The Court went on to reduce the judgement by $25,000 for monies that could have been received from ICBC as No Fault Benefits.  Mr. Justice Cohen provides a comprehensive summary of this area of law at paragraphs 11-18 of the decision that are worth reviewing in full.
This case goes to show that Part 7 benefits need to be pursued vigorously otherwise one can limit the amount of damages and benefits available after a BC Car Crash.

ICBC Part 7 Benefits and the Definition of Vehicle "Occupant"

Reasons for judgment were released today involving a tragic BC Pedestrian/Truck Crash addressing an injured Plaintiff’s entitlement to “no-fault” accident benefits.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was outside of the vehicle (which was hauling a trailer) she was riding in for the purpose of putting chains on it.  While doing so she was struck by a tractor-trailer unit and suffered catastrophic injuries.  Her vehicle and the various trailers of the vehicles involved were insured with different companies.  The Plaintiff applied for ‘no-fault‘ accident benefits to all of the insurers and they all refused payment because they could not agree which of them was responsible for paying the benefits.
The obligation for ICBC to pay no-fault benefits turns in part on whether a person is “insured“.  The definition of an “insured” is contained in s. 78 of the Insurance (Vehicle) Regulation and includes “an occupant of a vehicle that is licenced in the Province…” and “a pedestrian who collides with a vehicle described in an owner’s certificate” The determination of which insurer was ultimately responsible to pay the Plaintiff her benefits turned on whether she was an “occupant” of her vehicle at the time of this accident or a “pedestrian“.
Mr. Justice Myers held that the Plaintiff was a “pedestrian” and in so doing made the following observations with respect to the test for being an “occupant“:

[16]    The Regulation defines occupant, but does not define pedestrian.  Occupant is defined in s. 1(1) as follows:

“occupant” means a person operating or riding in a vehicle or camper and includes

(a)        a person entering or alighting from a vehicle or camper, and

(b)        a person, other than a garage service operator or an employee of a garage service operator, who is working, or whose dependant is working, in or on a vehicle or camper owned by that person;

[17]    There are a large number of cases which have addressed this issue in factual situations similar or analogous to the case at bar.  For example, in Kyriazis v. Royal Insurance Co. of Canada (1991), 82 D.L.R. (4th) 691 (Ont. Gen. Div.), affirmed (1993), 107 D.L.R. (4th) 288 (C.A.), the plaintiff pulled his car over to clean the snow off its windshield. Abbey J. held that he was not an occupant.  In doing so, Abbey J. rejected a line of authority – primarily from the United States – which applied what was referred to as a “zone of connection test”.  That test regarded the intent of the injured person as a significant determining factor of whether he or she was an occupant when not inside the vehicle.  Abbey J. focussed on the definition of occupant contained in the insurance policy before him, which was virtually identical to that in the Regulation.  He stated:

The word “occupant” is defined by reference to various physical activities or processes.  An “occupant” is a person who is driving an automobile, being carried in or upon an automobile, entering or getting onto an automobile or alighting from an automobile.  The plain meaning of the words used, it seems to me, suggests an intention to draw the line between an occupant and a non-occupant at the point that an individual, who is not driving, can no longer be said to be either entering or getting on to an automobile or, alternatively, alighting from an automobile…

[22]    However, the definition of “occupant” in the Regulation, and the definition in the policies involved in the other cases I have cited above, do in fact refer to the activity of driving, or getting in or out of a vehicle.  On that basis, I do not see a reason for departing from the approach in Kyriazis and the other cases I have cited above.

[23]    Ms. Schuk was not operating or riding in the vehicle, entering into it, nor alighting from it at the time of the accident.  Although the purpose of pulling over and getting out the vehicle was to put chains on it, the parties are in accord that Ms. Schuk was not actually working on the vehicle at the time of the collision.  Therefore none of the criteria for an occupant contained in the definition are met and she was not an occupant.

[24]    Pedestrian is not defined.  However, that was also so in most of the cases I cited above at para. 18.  The approach taken in those cases is that for the purposes of the scheme of automobile insurance, a victim of a car accident is either an occupant or a pedestrian; in other words if the victim does not fall within the definition of a passenger, then she is an occupant.  That appears to me to be the case with the legislation and regulation in issue in the case at bar.  Accordingly Ms. Schuk was a pedestrian at the time of the accident.

[25]    Ms. Shuk was therefore an insured for the purpose of no-fault benefits under both MPIC and ICBC coverage.

Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

Snow, Ice, and your ICBC Claim

Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenence company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inetible accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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