Tag: settlement negotiations

$45,000 Awarded to Plaintiff for Post Accident Headaches

After a 13 day trial in Vancouver, BC,  reasons for judgement were released yesterday awarding a Plaintiff $45,000 plus special damages (out of pocket expenses for treatment of injuries) as a result of a 2001 BC car accident.  This was a ‘headache claim’ and the primary issues were whether the Plaintiff’s headaches were caused by the BC car accident and if so, how much money the injury claim was worth.
At trial the BC personal injury lawyers on opposing sides were miles apart in their view of the value of the case in their submissions to the court.  The Plaintiff’s lawyer alleged permanent impairment of her capacity to earn income and sought damages in excess of $900,000.  The personal injury lawyers defending the claim responded that the Plaintiff only suffered from mild soft tissue injuries and that damages between $10,000 – $20,000 were appropriate. 
It is quite common for lawyers on opposing sides of ICBC claims to take very different positions at trial  and this case is a good example of how far apart 2 sides to an ICBC claim can be.  In this case the Plaintiff presented a case of chronic headaches which interfered with tasks of daily living including work.  The defence lawyers presented a case alleging mild soft tissue injury with headaches resolving a short time after the accident.  At the end of the trial the court largely sided with the defence lawyer’s position. 
The Plaintiff was 19 at the time of the accident.  As she was driving the defendant turned left directly in front of her lane of travel.  She had the right of way.  She had time to step on the brake and the clutch of her vehicle, shift into neutral and brace herself for the impact.   The accident was described as a t-bone collision by the Plaintiff although the court noted that the front left portion of the Plaintiff’s car struck the driver’s side door of the other vehicle in this BC car accident claim.
As is often the case in ICBC claims alleging an ‘impaired earning capacity‘ due to a BC motor vehicle accident, the court heard from a variety of doctors as ‘expert witnesses’.
Dr. Robinson, a neurologist who specializes in headache disorders, testified on behalf of the Plaintiff.  He stated that her headaches ‘have features consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.’
Dr. Chu, a physiatrist (specialist in physical medicine and rehabilitation) testified that the accident “is the direct cause of (the plaintiff’s) mechanical left upper neck pain.  This in turn is the cause of her secondary cervicogenic headaches”
Dr. Vincent, a cutting edge specialist in Anaesthesiology and Interventional Pain Medicine, also testified and gave evidence which ended up largely supporting the Defendant’s position.  Dr. Vincent injected anaesthetic medications into the Plaintiff’s neck on two occasions.  Unfortunately neither of the injections relieved the Plaintiff’s headache.  After a rigorous cross-examination Dr. Vincent testified that the Plaintiff’s results were inconsistent with a ‘causal relationship between an injury…to the neck and the headaches the Plaintiff experiences.”
The defence lawyer relied on the opinion of Dr. Jones, a neurologist, who testified that the Plaintiff’s headaches are ‘true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine’.
The court preferred the evidence of Dr. Jones.  The court found that the BC accident ‘did cause an exacerbation of (pre-existing) headaches’ and that ‘those headaches largely resolved and (the Plaintiff) had returned to her pre-accident state of health within approximately 10 months following the accident.
The court found that there were problems with the Plaintiff’s evidence and that her present recall of symptoms in the months after the accident was ‘unreliable’.  The ultimate finding was that all of the Plaintiff’s headaches sinced 2002 were ‘primarily migraine headaches that she would have developed (even without the accident)’.
The court awarded $45,000 for pain and suffering and the Plaintiff’s special damages up to March 16, 2002.
This case is a great example of the different positions opposing lawyers can take in court in an ICBC claim and results such as this one should be reviewed when in settlement negotiations with ICBC for a ‘headache’ claim as a result of a car accident.
Do you have questions about this case or an ICBC headache claim?  Are you looking for a free consultation with a ICBC claims lawyer?  If so click here to arrange a free consulation with ICBC claims lawyer Erik Magraken.

Does Your Lawyer Act for ICBC? Ask, You May Be Surprised By The Answer…

You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasobly so, that the lawyer is acting for you and not ICBC, right? Not always…
Lawyers typically have many clients. Many ICBC claims lawyers work both sides of the fence, that is, they represent injured people in advancing ICBC claims on some files and on other files they represent ICBC in defending against ICBC injury claims. Other lawyers restrict their practice to one side or the other.
Many people see lawyers working both sides of the fence as an inherent conflict of interest. They want their lawyer to represent injured people only, not insurance companies. Others like the idea that their lawyer also represents ICBC sometimes because perhaps such a lawyer has better insight into the defence tactics used by ICBC.
The problem, and the reason why I write this post, is that sometimes the potential conflict of interest is much worse than simply having a lawyer who works both sides of the fence. It is a problem of a lack of informed consent.
ICBC has contracted with many law-firms in BC for services in the defence of motor vehicle accident claims. ICBC requires some of these firms to sign an agreement called the Strategic Alliance Agreement (SAA).
Under the SAA, law firms whose lawyers are retained to act for ICBC are not permitted, when representing a plaintiff on another file, to sue ICBC for bad faith or to seek punative, aggravated or exemplary damages against ICBC.
Specifically, the SAA states that “ICBC may impose penatlies against the firm…..(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insureds…
Also, that “members of the legal firms team will not directly or inderectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.”
What a conflict of interest!
The Law Society of BC (the institution that governs lawyers in BC) has held that it is ok for a lawyer who represents ICBC and who is bound by the terms of the SAA to also act against ICBC in another claim. HOWEVER, clients need to be advised about this potential conflict of interest. Sepcifcially, “A lawyer (bound by the SAA) may properly act against ICBC for clients whose cases fall outside of the restrictions. However, a lawyer acting in these circumstances MUST ADVISE THESE CLIENTS OF THE LAWYER’S RELATIONSHIP WITH ICBC AND THE IMLICATIONS OF THE RESTRICTIONS THE LAWYER IS UNDER.
It is all about informed consent. There is nothing wrong in hiring a lawyer to represent you who has signed the SAA but you are entitled to know about these restrictions. If you know about these restricitons you may not want to hire such a lawyer and instead retain an icbc claims lawyer who is not bound by any contractual restrictions with ICBC. Ask your lawyer if he signed the SAA, you may be surprised by the answer.
If your lawyer signed the SAA and did not tell you this up front, you were deprived of an opprotunity to make an informed decision. If this occurred you may want to ask yourself why your lawyer kept this information from you…?
Do you need to speak with an ICBC Claims Lawyer?  Contact Erik Magraken for a free consulation.

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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