ICBC Law

In reasons for judgment released today, the Honourable Madam Justice Loo stated that the jury’s verdict in a case involving serious injuries including concussion, neck and back injuries, depression and a chronic pain disorder, was ‘inordinately low’ and not supported by the evidene.

The plaintiff was a 28 year old corrections officer who sustained serious injuries in an October, 2003 motor vehicle collision when his vehicle was struck by a semi-tractor trailer that ran a red light.

The jury heard 10 days of evidence. During this time a series of unusual developments occurred (the details of which could be found in Madame Justice Loo’s judgment at paragraphs 12-16) which include a juror getting discharged as a result of an anxiety attack, a juror getting discharged for unusual behaviour which caused him to be hospitalized and the jury discussing the case prematruely and against an express caution from the trial judge not to do so.

After hearing all the evidence the jury awarded $32,550 for past income loss, $17,673.86 for special damages, $30,000 for pain and suffering and loss of enjoyment of life, $75,000 for future loss of earning capacity and $28,205 for future care costs.

Madame Justice Loo felt compelled to take the unusual step of commenting on the jury’s verdict and did so in detail. This was apparently done with a view towards assisting the British Columbia Court of Appeal in a judgment that very likely will be appealed. After pointing out that this jury spent no more than 2.5 hours in deliberations, Madame Justice Loo held that ‘no jury reviewing all of the evidence as a whole could have reached such a verdict’.

In a judgment released today by the British Columbia Supreme Court, a plaintiff was awarded a total of $173,442.92 for her damages and loss as a result of a 2004 motor vehicle collision.

The Plaintiff was involved in a fairly serious rear-end collision while stopped at a red light. The Plaintiff’s vehicle was struck by a tractor-trailer causing significant damage to the Plaintiff’s vehicle.

The Plaintiff’s injuries included a soft-tissue injury to her right shoulder, sternum, rib cage and lower abdomen, as well as a mysofascial sprain affecting the neck, shoulders, and posterior cervical spine. She went on to develop myofascial pain which her treating physiatrist described as a ‘complicated
chronic pain syndrome”.

In addition to these physical injuries, evidence was presented that the Plaintiff suffered from a Panic Disorder and a Post-Traumatic Stress Disorder (PTSD) as a result of the collision.

The trial judge concluded that the injuries resulted in a partial disability which was likely going to continue into the forseeable future.

The assessed damages included $81,000 for pain and suffering, $22,700 for past wage loss, $60,000 for loss of earning capacity, $5,130 for housekeeping services, just over $1,000 for past expenses and $3,549 for future care.

There’s been a lot of talk about customs agents getting travelers to start up their computers so they can examine (and sometimes download) whatever is on their hard drives, review web browser histories and even confiscate the machines entirely. This is happening all over: in the United States, Great Britain and, even up here in Canada.

Depending on your politics this invasion of privacy may get your blood boiling. On the other hand, maybe you think it promotes security in which case it’s a good thing.

But, how would you feel if your car insurance company could do it? ICBC (and I figure they’re not alone) has started forcing plaintiffs to let forensic experts examine their computers (see Veltheer v. Prachnau). ICBC does this in the discovery phase of the litigation process where both the plaintiff and the defendant are basically given access to each other’s documents so they can get solid evidence. But, it’s one thing to make you open up your filing cabinet and pull out the file marked “Car Accident” and another to yank out your computer’s hard drive, which probably has a lot more than just medical reports.

Fortunately, ICBC doesn’t always get its way. But, if you’re going to make a motor vehicle accident claim, you might want to be very careful about what is on your computer (and who else gets to use it). These days, Big Brother is a whole lot more than just your friendly neighbourhood customs agent.

On February 21, 2008, the Honourable Mr. Justice Wong awarded $50,000 for pain and suffering for a neck injury.

The Plaintiff was involved in a forceful collision on June 2, 2004. She sustained various injuries including headaches, back pain and neck pain. By the time of trial some of the injuries improved, however the Plaintiff continued to suffer from back pain and neck pain. Evidence was presented that she likely had damage to the facet joints in the upper cervical spine and that the prognosis for resolution of her pain was poor.

In addition to compensation for pain and suffering, the Plaintiff was awarded damages for past income loss, loss of general earning capacity, special damages, and cost of future care.

On February 8, 2008, Associate Chief Justice Neil Wittmann concluded that the Alberta Minor Injury Regulation (a regulation which imposed a $4,000 cap on auto-accident victims who sustained soft tissue injuries) is unconstitutional.

Justice Wittmann concluded that the cap on damages for soft tissue injuries”sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums.”

In striking down the legislation Justice Wittmann held that the Minor Injury Regulation is discriminatory against victims who sustained soft tissue injuries and that this violated Section 15 of the Canadian Charter of Rights and Freedoms.

This is a great decision as it restores the rights of victims of Alberta auto accidents who sustained soft tissue injuries to seek fair compensation for their losses from the courts. The decison has been hailed a success by the Alberta Civil Trial Lawyers Association who have urged the government to accept the decision.

The government, however, has announced that they will indeed appeal the decision. Justice Wittmann’s reasoning appears sound and hopefully will withstand appeal. However, nothing in the judgement prevents Alberta’s legislature from introducting new legislation which would limit the compensation available for pain and suffering for auto accident victims.

Only time will tell whether Alberta’s legislature will institute revised legislation capping damages for ‘minor injuries’ in a way that is not inconsistent with Justice Wittman’s interpretation of Section 15 of the Charter or if the government will allow Alberta auto accident victims with soft tissue injuries to have unfettered access to the courts for fair compensation. In the meantime, however, many plaintiff’s may now have access to the courts to receive fair compensation for their soft tissue injuries.

In a judgement released on March 19, 2008, The BC Supreme Court awarded a Plaintiff a total of $102,680 for various soft tissue injuries that resulted in chronic pain.

The Plaintiff was a passenger in a mini-van that was involved in a relatively severe collision on January 11, 2004.

As is often the case in ICBC injury claims, competing medical evidence was presented at trial. The trial judge accepted the opinions of the Plaintiff’s treating GP and her physiatrist. It was accepted that the Plaintiff sustained significant soft tissue injuries in the collision. As a result of these, the judge concluded that the Plaintiff will be left with chronic pain that will affect her future employability, the number of hours she will be able to work, and the duration of her working years.

The Plaintiff’s damages included $50,000 for pain and suffering.

The case includes an interesting analysis as to whether a subsequent accident was to blame for the Plaintiff’s injuries and whether or not the Plaintiff did a reasonable job in mitigating her injuries.

Two recent BC Court decisions illustrate the difficulty in proving a legal link between MS and trauma on a balance of probabilities.

In a unanimous decision of the British Columbia Court of Appeal pronounced February 20, 2008, the court dismissed the appeal of a Plaintiff’s claim in which the trial judge found that she did not sustain brain injuries in 2 motor vehicle accidents.

The trial judge found that “Ms Roeske has received a diagnosis of probable multiple sclerosis. She has multiple sclerosis of a remitting/relapsing type. All of her neurological signs, including her cognitive deficits, can be explained by multiple sclerosis. The later improvements in her test results in the areas that Dr. Amell found deficient due to brain injury suggest that her remitting/relapsing multiple sclerosis caused those deficits. There is no evidence that traumatic brain injuries can be relapsing/remitting in nature”

On appeal, the court found no errors in the trial judgement and concluded that “The judge merely was relating the test result evidence to the diagnosis of probable multiple sclerosis. He concluded in that context the test results did not support a traumatic brain injury. The judge did not conclude Ms. Roeske’s condition was attributable to multiple sclerosis. He concluded she did not establish on the balance of probabilities that her condition was caused by the accidents”

In an other interesting decision considering the potential link between trauma and MS, Mr. Justice Cullen disposed of an alleged connection by way of summary trial.

Mr. Justice Cullen was specifically asked “Does the Evidence Prove on a Balance of Probabilities that there is a Causal Relationship between Trauma, including Mild Head Trauma or Whiplash, and the Onset or Exacerbation of MS Symptoms?”

Competing medical evidence was called making this a difficult issue to resolve. Mr. Justice Cullen thoroughly reviewed much of the leading scientific evidence with respect to this topic making this decision must-reading for anyone advancing a claim connectin MS and trauma.

In the end, Mr. Justice Cullen dismissed the Plaintiff’s claim concluding that “the question before me of whether trauma, including mild head trauma or whiplash injury, can cause the exacerbation of MS symptoms, was the precise question before the court in Dingley supra. As did the Lord President and the House of Lords in that case, I conclude that the plaintiff has not proved on a balance of probabilities that such a causal connection exists.”

The judgement went on to state that “In finding that the evidence falls short of establishing a causal link on a balance of probabilities, I also rely on the fact that a substantial majority of the relevant scientific community has rejected the notion of a causal connection based on developments in understanding the pathogenesis of the disease, epidemiological studies, reanalysis of previous studies said to support the link, and a weakening of the biological plausibility of the theory through studies such as the Werring Study and the Filippi Study. In the result, I have an advantage over the court in Dingley, supra, in knowing what the future held for the issue in the scientific community in the years following that judgment.”