ICBC Law

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.

The Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle.  The Plaintiff had a green light and a significant impact occurred.

The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off.  Liability (fault) was admitted on behalf of the defendants on the morning of trial.  The trial focused on the Plaintiff’s injuries and their value.

The most contentious claimed injury was a concussive injury affecting cognitive abilities.   The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges.  In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident.  But I am not persuaded that it is more probable than not that this occurred.”

Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 - 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.

In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89]            I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall.  I would describe the severity of these injuries as being moderate.

[90]            I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident.  Not all of this loss of hearing was caused by the injury.  Some of it was attributable to the normal aging process.  I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91]            I am not satisfied that the plaintiff sustained injury to her brain.  Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium. 

[92]            The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder.  Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future.  These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions.  To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop.  But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder.  The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation.  But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

Reasons for judgement were released today awarding a Plaintiff $21,500 for pain and suffering plus ’special damages’ (accident related out of pocket expenses) as a result of a 2005 motor vehicle collision.

While the judgement does not mention ICBC directly (BC personal injury tort judgements rarely mention who the insurer for the defendant is) this case appears to me to be one which was defended on the basis of ICBC’s Low Velocity Impact (LVI) program.  The reason why I reach this conclusion is because the defence lawyer argued that “this was such a minor motor vehicle accident that no damages should be awarded”.  This is a standard argument behind ICBC’s LVI program.

The accident did not occur at a significant rate of speed and resulted in little vehicle damage.  The Plaintiff’s vehicle cost approximately $1,500 to repair.

The Plaintiff’s injuries are discussed at paragraphs 5-16 of the reasons for judgement which I reproduce below:

[6]                She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw. 

[7]                The doctor told her to “take it easy”.  She went home and put an ice pack on her wrist and shoulders. 

[8]                The pain in her wrist resolved within a month of the accident.  The pain in her neck lasted for approximately a year and a half.  Massage therapy helped with the pain in her neck; she developed better range of motion.

[9]                She also began to experience headaches which resolved within a year and a half of the accident.

[10]            The muscles in her jaw tightened and she experienced pain.  She described the jaw pain starting after the accident as minor, though it continued to get worse.  She still has some symptoms of jaw pain but it has improved with the use of a night guard.

[11]            Three weeks after the accident she developed chest pains.  She first noted the chest pains when she was jogging.  She did not have this pain prior to the accident.  When she developed the pain she stopped jogging.  She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.

[12]            Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.

[13]            She did not play tennis for almost a year and a half because the right side of her body was sore.

[14]            She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions.  She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays.  Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.

[15]            She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.

[16]            The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments.  She had approximately 10 physiotherapy treatments between June and November 2006.  She also had chiropractic treatments on 6 occasions in February and March 2006.

The court, in awarding damages, made the following findings:

[26]            Here, however, I am satisfied that the plaintiff is a credible witness.  She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate.  Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements….

[28]            I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness.  There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment.  I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216.  I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982.  The plaintiff is also entitled to her costs.

I usually focus my ICBC case law reports on cases from the BC Supreme Court and BC Court of Appeal but reasons for judgement were recently released from the Provincial Court of BC (commonly referred to as Small Claims Court) which caught my eye.

The Plaintiff was involved in a rear-end crash in May 2005.  From the judgement it appears to me to be a claim that fit ICBC’s Low Velocity Impact criteria (LVI) where ICBC takes the position that no compensable tort claim exists. 

The Plaintiff’s vehicle sustained little damage.  The evidence presented by the Plaintiff, her husband and her doctor was ‘fairly consistent’ and the court accepted that the Plaintiff suffered a ‘whiplash injury’ to her neck and back.

The court made the following findings “I accept that there is a four month injury from start to finish with approximately two months off work.  On those facts, it is my standard view and backed up by a number of cases, which oddly enough comes in directly between what the claimant puts forward way up at the upper end and what the defendant puts forward way down at the lower end, my view of this has been throughout coming towards the figure of $10,000 and that is the figure that I do award“.

The Plaintiff was also awarded her lost wages and special damages (out of pocket accident related expenses).

This judgement was only 3 pages long which is unusual for an ICBC personal injury case and makes for very easy reading.  I can’t find this judgment on the BC Provincial Court website but will post a link to the judgement if it becomes published.  This case shows how well suited the Provincial Court can be in some circumstances in dealing with ICBC injury claims involving minimal injuries which resolve quickly.

Reasons for judgment were released today awarding a Plaintiff just over $73,000 in total damages as a result of injuries and loss sustained in a 2005 BC vehicle collision.

The Plaintiff’s vehicle was rear-ended.  The collision was significant with enough force to brake the seat assembly in her vehicle.  She was 59 years old at the time of impact. The Plaintiff suffered injuries to her neck, shoulder, wrists, knee and elbow. Most of her injuries healed in short order.  The Plaintiff’s neck and shoulder injuries did not and she testified that those areas were painful everyday  some 3 years after the collision.

The Plaintiff’s injuries and their effect are summarized well at paragraph 14 of the judgment which I reproduce below:

[14]            The main complaints of the plaintiff are that she has suffered significant, ongoing, chronic and permanent left neck and shoulder pain, and continuing anxiety, all caused by the motor vehicle accident.  She has kept working throughout, for the most part.  She has continued to work long hours, and at the same time has, on the advice of her doctor, tried a number of different kinds of therapy.  She has gone for two different kinds of physiotherapy, massage therapy, acupuncture, and has sought the services of a kinesiologist, a certified personal trainer.  She also went once for counselling to a psychologist with regard to her anxiety.  She applies ice and heat to alleviate her pain, and uses medications, with apparently limited results.

The Plaintiff called her husband to give ‘before and after’ evidence along with her treating chiropractor and family physician.  The defence called no evidence which is somewhat unusual in a contested injury claim.  In most ICBC injury claims that proceed to trial the court hears from both Plaintiff and Defence expert medical witnesses who provide opinion evidence as to the extent of injury and its relationship to the trauma in question.  It appears here that the defence was content to simply rely on their cross examination of the Plaintiff’s physicians.

The court found that the Plaintiff and her husband were ‘extremely credible’.   The court accepted that the Plaintiff’s ongoing complaints were caused by the collision.  In justifying an award of $60,000 for pain and suffering Madam Justice Morrison made the following comments:

[58]            In my view, there has been a significant loss of enjoyment of life for this plaintiff.  She suffers the pain and discomfort that she has described while working, and particularly while sitting at a computer, which involves much of her day.  She will continue to work.  Perhaps even more significantly, she has and will continue to suffer the loss of enjoyment of life that has occurred in her life beyond work.  There has been a significant and negative change in the lifestyle of Mrs. Larlee, ranging from her day-to-day household activities, her passion for gardening, her lifelong involvement with the piano and the accordion, and an active lifestyle which involved vacations and other activities.  Her pain is chronic and ongoing.

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.

Both collisions were rear-end crashes.  The first occurred in February, 2004, the second in July of the same year.  Fault was admitted by ICBC on behalf of the Defendants in both accidents.  This trial dealt with quantum of damages (value of these injury claims).

The Plaintiff had generally good health before the collisions.   After the collisions she suffered from various symptoms.  The extent of her injuries and their relationship to the crashes was at issue at trial.

The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions.  The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.

The court awarded damages as follows:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

Reasons for judgement were released today awarding a Plaintiff damages as a result of injuries sustained in a 2005 rear end crash which occurred in Vancouver, BC.

The Plaintiff was received various soft tissue injuries which largely recovered.  In awarding $20,000 for the Plaintiff’s pain and suffering the court made the following key findings of fact:

[23]            The plaintiff, who is now 32 years old, suffered a mild to moderate soft tissue injury in the motor vehicle accident.  He was doing well within three months and was substantially recovered after six.  He has some residual symptoms but they do not restrict the nature of his activities.  However, the degree to which he can participate in them is different now.

[24]            The more importance physical activity has in one’s life, the more one feels the loss of that capability.  (the Plaintiff’s) life largely revolved around sports that required peak physical fitness, and the training required to maintain that level of fitness.  Those aspects of his life were seriously disrupted for three to four months, with gradual improvement over the next two or three.  His relationships with his friends suffered accordingly over that period.  It was clear from his evidence and the evidence of Ms. Fok, his training pal, Mr. Candano-Dalde, and (the Plaintiff’s) mother, that (the Plaintiff) felt with some justification that there was nothing he could not do athletically prior to the accident.  While he has recovered and is now very active again, it appears that he has lost the edge he once had.

[25]            The award for non-pecuniary damages should adequately compensate (the Plaintiff) for all of these factors, past and future.  I set those damages at $20,000.

This case is one of the shorter trial judgements I’ve read from the BC Supreme Court dealing with quantum of damages in quite some time.  This case is worth reading for anyone advancing an ICBC tort claim dealing with mild/moderate soft tissue injuries to see the types of factors considered when awarding money for pain and suffering.

Reasons for judgement were released today by the BC Supreme Court awarding close to $45,000 in total damages as a result of a 2006 Surrey, BC car accident.

This case involved a rear-end crash and liability was admitted.  The trial focused solely on damages.

The Court made the following findings of fact:

[50]            I am satisfied that (the Plaintiff) suffered a moderately severe whiplash injury as a result of the accident in January 2006 that involved her upper, mid and lower back, neck, and shoulders. In addition, I am satisfied (the Plaintiff) suffered an injury to the web spaces between her thumbs and forefingers on both hands when they struck the steering wheel upon impact. As a consequence of these injuries, I accept that (the Plaintiff) suffered muscle stress headaches in the back of her neck that were distinct from her migraine headaches.  Further, I accept that she had difficulty sleeping because of the pain from her injuries and, at least initially, because of the emotional distress caused by the serious nature of the accident.

[51]            There is also cogent evidence that as a result of these injuries (the Plaintiff) was incapable to performing her crossing guard job and her noon hour supervision work from January 9 to March 10, 2006. Further, it is apparent that the pain (the Plaintiff) suffered as a result of these injuries was significant enough to warrant frequent and regular appointments with Dr. Rondeau up until October 2006 and twice weekly physiotherapy treatments from February 2006 to December 2006.

[52]            After December 2006, however, there is no evidence that (the Plaintiff) sought medical treatment for her injuries. While (the Plaintiff) continued to do the exercises and stretches she was taught by her physiotherapist once or twice per week, she did not return to her doctor or seek other types of therapy until July 2008 when she began a course of massage therapy as recommended by Dr. Hershler. Moreover, (the Plaintiff) went to work and carried out her regular duties during this period with only limited discomfort as corroborated by the evidence of Ms. Sawicki and Ms. Hildebrandt. With her return to regular work duties, (the Plaintiff) was also capable of engaging in her only physical recreational activity: going for walks. As walking was a regular part of her job each day, it is likely that she was capable of returning to her pre-accident recreational walking soon after she returned to work.

Damages were assessed as follows:

1.         Non-pecuniary damages $35,000.

2.         Past loss of wages $1,474.15.

3.         Future loss of earning capacity $3,158.

4.         Special damages $665.03.

5.         Cost of future care $1,353.

6.         Loss of housekeeping services $4,704.

One procedurally interesting part of this decision was the issue of the admissibility of a treating doctor’s CL-19 report.   When people apply to ICBC for no fault benefits they have the right to obtain a report in the prescribed form from treating physicians.  The prescribed form is known as a CL-19 which is a short form fill in the blanks type of a document in which treating doctors are asked to answer certain questions relating injuries and disability.  In this case the Plaintiff  wished for the doctor’s opinion contained in the CL-19 to be admitted into evidence.  The defence opposed arguing that the report does not comply with Rule 40A (the supreme court rule dealing with the admissibility of expert opinion evidence)  The court ruled the report inadmissible finding as follows:

[6]                Clearly both parties’ positions have merit. There was nothing further  (the Plaintiff’s) counsel could have done to secure a report from Dr. Rondeau that complied with the Rules of Court. On the other hand, Mr. Sharma’s counsel had no notice of the nature of Dr. Rondeau’s opinion and an adjournment of the trial at this late stage would not have been appropriate.

[7]                I heard Dr. Rondeau’s evidence in a voir dire subject to a ruling on its admissibility. In my view, apart from his observations of (the Plaintiff’s) symptoms and his chronology of events, his testimony had very little probative value. First, Dr. Rondeau did not diagnose (the Plaintiff) as having myofacial pain syndrome. This was simply a question in his mind when he completed the CL-19 form about six weeks after the accident which was far too soon to make such a diagnosis. Second, although he observed some signs that she suffered from post traumatic stress disorder, there was also no definite diagnosis of PTSD at the time the CL-19 was completed. It is also my view that the diagnosis of such psychological conditions may well be outside the expertise of a family physician. Accordingly, the weight that could be applied to the opinion evidence of Dr. Rondeau is very limited.

[8]                In these circumstances, it is appropriate to exercise my discretion in favour of the defendant and exclude Dr. Rondeau’s opinion evidence. The CL-19 does not meet the minimum requirements for a medical/legal opinion and it would prejudice Mr. Sharma if I were to admit the evidence despite its deficiencies. On the other hand, even if I were to admit Dr. Rondeau’s opinion evidence, it adds little to the plaintiff’s case.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.

The Plaintiff was 23 years old at the time of trial.  He was injured in 3 collisions, the first of which occured when he was only 10 years old.

The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).

The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years.  The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.

Damages were awarded as follows:

Non-pecuniary damages                                            $ 75,000

Loss of Earning Capacity                                           $100,000

Cost of Future Care                                                    $  12,650

Special Damages                                                       $    3,570

Past Income Loss                                                       $       698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings.  That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury.  Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.

Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine.  Specifically he noted that: 

[19]            The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms.  There have been few objective physical findings.  However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years.  It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $45,000 in total damages as a result of a 2004 BC car crash.

The crash was significant.   The Plainitiff was travelling at 60 kilometers per hour when his vehicle was struck head on by the Defendant.  The Plaintiff’s vehicle was destroyed as a result of the impact.

The court found that the Plaintiff suffered various soft tissue injuries as a result of this crash and that these injuries plateaued by the end of 2006 to about 90% of the Plaintiff’s pre accident level.   The court’s key findings are made at paragraphs 28-31 which I set out below:

[28]            On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29]            I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30]            I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31]            I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect (the Plaintiff) in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in (the Plaintiff’s) usual activities on a sporadic basis, perhaps every month or so.

The following damages were awarded:

a)         non-pecuniary damages of $35,000.00;

b)         past income loss of $8,250.00;

c)         special damages of $2,786.15; and

d)         court order interest on the past income loss and special damages awards.

I’m on the road working on ICBC claims in Kelowna today so today’s BC personal injury update will be a little lighter on detail than usual.

Yesterday the BC Supreme Court released reasons for judgement awarding just over $82,000 in damages as a result of injuries and loss sustained in a 2005 BC Car Accident in Victoria, BC.

The Plaintiff was a 24 year old graphic designer at the time of the accident.

The court made the following finding with respect to injury:

[83]            From the foregoing evidence and my findings, I find that the plaintiff has established that he suffered a soft tissue injury to his cervical and lumbar spine in the accident.  Dr. Chan’s report does not attempt to classify the severity of the injury, but he did note the injury to be resolving at about two months post-accident, with a conservative treatment regime.  The plaintiff missed a week of work immediately after the accident, then returned to work half days for three to four months, and then went back to full-time hours of seven to eight hours a day.  He considers the last significant improvement in his condition to be about six months post-accident.

[84]            To date, just over three years as of the date of trial,  the plaintiff remains unable to work the additional hours per day to bring him to his pre-accident level of 50 to 60 hours per week, and continues to experience “flare ups” with pain in his lower back when engaging prolonged periods of standing or sitting.  Certain physical activities and sports that he previously enjoyed, he now engages in at a reduced level or has declined to continue with, for example snowboarding and mowing his parents’ lawn.  In my view, the evidence establishes a minimal ongoing impairment arising from the soft tissue injuries he sustained in the accident. 

Damages were awarded as follows:

(a)        Non-pecuniary damages:                                           $35,000.00

(b)        Damages for lost income:                                          $15,647.18

(c)        Damages for loss of future earning capacity:            $30,000.00

(d)        Special damages:                                                       $  1,845.36

Total:                                                                                       $82,492.54

This is one of the few ICBC injury claims that I’m aware of that proceeded through trial under the relatively new Rule 68.  Rule 68 should be carefully reviewed for anyone prosecuting an ICBC injury claim that may be worth less than $100,000 as this rule presents some benefits and restrictions in the way in which an ICBC claim can be advanced.