ICBC Law

Reasons for judgment were released today further interpreting the relatively new BC Rule 37(B) (the rule dealing with formal settlement offers and costs consequences of these in BC Supreme Court Actions).

The facts of this case are a little difficult to extract from the judgement but it appears that the Plaintiff sued for damages as a result of 2 motor vehicle collisions and separate Formal settlement offers were made by the Defendants in each action.  Both actions went to trial by jury and damages were awarded.

It appears that the global Jury award exceeded the combined settlement offers but when broken down between the 2 accidents it appears that the settlement offer for the second collision exceeded the damages the Jury awarded for that collision.

The Defendants asked the court to award them costs for beating the Second Accident Rule 37 offer.  (I should point out that the settlement offers where made when Rule 37 was still in place but verdict was given after it was repealed by Rule 37B).

The court noted that:

[11]            Rule changes have overtaken this case.  Rule 37B retroactively reinstates judicial discretion in the matter of settlement offers and cost awards.

[12]            As set out in Bailey v. Jang, 2008 BCSC 1372, Rule 37B came into force on July 1, 2008.  The Rule states that it applies to offers to settle made both before and after July 1, 2008, where no order as to costs has been made.  As conceded by the defendants on this application, Rule 37B returns judicial discretion as a major factor in determining an appropriate award of costs.  Thus, the new rule makes far less applicable most of the Court of Appeal decisions relied upon by the defence.  That is, those which stated Rule 37 is a complete code in relation to which no judicial discretion is applicable.

The court then refused to exercise its discretion to award the second defendant costs or double costs for exceeding their settlement offer.  The court provided the following reasons:

[14]            The analysis requires applying the facts to Rule 37B(6)(a):

Whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date

[15]            Here, while I do not find, as urged to do by the plaintiff, that the offer is ambiguous or at least significantly ambiguous, it is clear that to accept the second offer in this case would not have simplified the trial at all.  It is reasonable to assume that, particularly with a jury to have settled the second action would tend to leave the jury with more complicated instructions.

The relationship between the terms of settlement offered and the final judgment of the Court

[16]            The two offers combined were significantly less than half the award of the jury.  Thus, this factor favours not awarding costs to the defendants.

The relative financial circumstances of the parties

[17]            This was a matter of a bus company versus the modest financial circumstances of the plaintiff.  If anything, it favours the plaintiff however, I give little weight to this.

[18]            In all these circumstances – the over-riding principle here is whether, if the offer had been accepted would there have been a significant or any saving in litigation cost to either party or the Court.  Here, it would be difficult to see any saving.  It was obvious during this trial that the defence intended to call the bus driver and perhaps other witnesses to the second accident to challenge the plaintiff’s credibility generally.  There was little or no evidence by the plaintiff that painted the second accident as other than minimal physically.  The psychological impact was far greater because the second accident occurred just hours following a much more traumatic accident.

[19]            Thus, there would have been no savings in time at the trial.  In these circumstances the defendants are not entitled to any costs of these two actions and the plaintiff will have her costs throughout.

[20]            There is divided success on this application.  However, the plaintiff was successful on the costs issue which took up almost the whole of the submissions.  In these circumstances she should have her costs at the lowest scale on this application.

I will continue to post the BC Supreme Court’s interpretation and application of Rule 37B.  The factors the courts consider in exercising discretion under this rule should be of particular interest to anyone taking an ICBC injury claim to trial in BC Supreme Court where a formal settlement offer has been delivered.

As you may know Rule 37-B is the new BC rule dealing with formal settlements and costs consequences in the BC Supreme Court.  (to find my previous posts on this case search this cite for ‘37B’).

This new rule will take some time to work itself out.  There are already conflicting reasons for judgement addressing whether it is appropriate to look at whether the Defendant is insured when considering costs consequences.

Last week J. Hinkson refused to consider the insurance status of a defendant when deciding whether to award ‘double costs’ after trial.

Reasons for judgement were released today considering the fact that the defendants were ‘represented by ICBC’ when weighing the ‘financial circumstances’ of the parties.

In addition to being the first precedent that has looked at the insurance status of the defendant as a relevant consideration, this case is interesting because it is the first to trigger ‘double costs’ even though a matter settled before judgement.

In this case the Plaintiff alleged a Mild Traumatic Brain Injury after a BC car accident.  She sued and made a formal offer to settle for $500,000 which expired at the start of trial.  The case settled on the 11th day of trial when the defendant’s offered to settle for $1 Million ‘plus assessable costs and disbursements’ less advances paid.  The Plaintiff’s accepted this offer.

The parties could not agree on the costs implications of the settlement were.  The Plaintiff asked for double costs because the Plaintiff’s reasonable settlement offer (which complied with Rule 37B) was rejected and the Plaintiff had to incur significant expense in running 11 days of trial prior to achieving settlement.

The court agreed the Plaintiff was entitled to double costs in these circumstances.  The key finding being made at paragraph 42 which I set out below:

  In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward.  Since the defendants ultimately settled for an amount which was double the plaintiff’s original pre-trial offer, it is clear in my view that her original offer to settle “…was one that ought reasonably to have been accepted”.  Certainly the terms offered in August were far more advantageous to the defendants than the ultimate amount represented by the settlement agreement.  It is also clear that there is a substantial disparity in financial circumstances between the parties.  The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.  Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial

I’ve previously blogged about the financial consequences of being in breach of ICBC insurance.

Today reasons for judgemenet were delivered showing some of these consequences in action.

In 2002 the Plaintiff was involved in a car accident.  He was at fault for the accident.  He was in breach of his insurance at the time (he was driving with a suspended licence). And he injured the occupants of one of the vehicles involved in the collision.

The injured parties advanced an ICBC claim and eventually ICBC settled paying out a total of $19,067.38.

ICBC then came after the ‘breached’ Plaintiff to have the money paid back.  ICBC also exercises its statutory right and refused to re-issue a license to the Plaintiff.

Today’s judgement dealt with how much money was owed to ICBC.  The court found that ICBC was entitled to $19,320.38 from the ‘breached’ driver.

This case is worth bringing to the attention of anyone who is thinking of driving in breach of their contract with ICBC.  Doing so can result in significant financial consequences.

In a judgement released today a total of $81,694 was awarded in compensation as a result of a 2004 ‘chain rear end’ accident in BC.

The accident involved mutliple vehicles and the force of the crash was enough to write off the Plaintiff’s car. Fault was admitted by ICBC leaving only quantum of damages at issue.

As a result of crash the court found that the Plaintiff suffered from a fracture at T12 and a disc injury to T11 / T12 and perhaps T9 / T10 (basically fractures to the mid back) and that the Plaintiff ‘has gone on to develop a chronic pain syndrome with discomfort, sleep disturbance and depression.

The court went on to award $60,000 for pain and suffering, $20,000 for Loss of Earning Capacity and just over $1,000 in special damages (out of pocket expenses as a result of the accident.)

This case is worth reading for the judge’s discussion of credibility. When people complain of ‘chronic pain’ in an ICBC claim their credibility is always at issue. The reason is obvious, pain cannot be measured objectively. People can only describe their pain and a judge or jury can believe this descrpiton or reject it. In this case the judge had problems with the Plaintiff’s credibility but accepted that her chronic pain syndrome was legitimate.

More interesting is the judge’s comments on the credibility of the expert witnesses that testified. In this case ICBC, on behalf of the Defendant, hired an orthopaedic surgeon to examine the Plaintiff. He testified, in essence, that the Plaintiff had no serious injuries or ongoing problems. The court rejected this doctor’s evidence finding that ‘it was obvious to me that he had not spent as much time, nor was he as objective in his assessment of the Plaintiff (as her own physicians were). (ICBC’s doctor) impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefoe attach little wieght to his evidence.

This case is also worth reviewing for the judge’s great summary of the law relating to future wage loss at paragraphs 34 and 35.

Do you have questions about this case or an ICBC chronic pain syndrome claim that wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.

The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.

The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’

The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.

As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.

No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.

The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.

The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:

[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.

The court awarded $80,000 for ‘general damages’ (pain and suffering).

The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.

This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.

In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.

Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“

This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.

The court summarized the law of ‘failure to mitigate’ as follows:

[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).

The court rejected ICBC’s failure to mitigate arguments.

This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.

Do you have questions about this case or an ICBC case involving future wage loss or loss of overtime opportunities that you wish to discuss with a BC personal injury lawyer? If so click here to arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

If you are advancing and ICBC injury claim in BC Supreme Court, whether or not you are represented by an ICBC Claims Lawyer, you need to know something about Formal Settlement Offers. These settlement offers bring potential consequences if they are not accepted and these need to be considered when deciding whether an ICBC settlement offer is fair.

Rule 37 of the BC Supreme Court Rules permits parties to a lawsuit to make a Formal Settlement Offer and if the claim goes to trial and the settlement offer is beaten there can be significant Costs consequences (where the losing side has to pay the winning side tarriff court costs and disbursements which can easily exceed $10,000).

If you think of taking an ICBC claim to trial and winning I imagine you think of proving the other driver is at fault and being awarded money for your injuries. With formal settlement offers, winning is not quite that simple. If ICBC makes a formal settlement offer under Rule 37 and the judge or jury awards you less this can be considered a loss. Rule 37(24) sets out the consequences to a Plaintiff for failing to accept a Defendant offer to settle and ‘losing’ at trial, the subrule reads as follows:

Consequences of failure to accept defendant’s offer for monetary relief

(24) If the defendant has made an offer to settle a claim for money and the offer has not expired or been withdrawn or been accepted,

(a) if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and the defendant is entitled to costs assessed from that date, or

(b) if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

On the other side of the coin, there can be more than one way of winning. If you make a formal offer to settle your ICBC claim in compliance with Rule 37 and the judge or jury award you more money, Rule 37(23) sets out the consequences to the Defendant. The subrule reads as follows:

Consequences of failure to accept plaintiff’s offer to settle a monetary claim

(23) If the plaintiff has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted, and if the plaintiff obtains a judgment for the amount of money specified in the offer or a greater amount, the plaintiff is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.

Now, after absorbing all of the above you need to know that RULE 37 and 37A are being repealed as of July 2, 2008 and being replaced with Rule 37(B)!

That does not mean that you just wasted your time learning the above. If a formal offer to settle an ICBC injury claim is made before July 2, 2008 it needs to comply with Rule 37 or Rule 37A to trigger ‘costs consequences’.

To trigger costs consequences in an ICBC claim that goes to trial any offer made after July 2, 2008 has to comply with Rule 37B. To do so the offer must

1. be made in writing

2. be delivered to all parties of record, and

3. contain the following sentence “the [name of party making the offer] reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgement on all other issues in this proceeding”.

It seems that the purpose of Rule 37B) is to simplify the process of making formal settlement offers. The consequences of taking ICBC claims to court and beating (or not beating) a formal settlement offer seem to be less certain under this new rule. Rule 37B(4) sets out the consequences as follows: “The court may consider an offer to settle when exercising the court’s discretion in relation to costs”.

The options given to the court are set out in subrule 5 which states:

In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of the delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of the delivery of the offer to settle.

Subrule 6 sets out the factors a court may consider in exercising its costs discretion where a formal offer was made stating:

In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on an later date

(b) the relationship between the terms of the settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate

I for one welcome Rule 37B. One of the biggest criticisms made by plaintiff ICBC injury claims lawyers was that the old Rule 37 was unfair to plaintiffs as a person injured in a car accident was always in a worse financial position to face the consequences of losing at trial than ICBC. This lopsided reality created a lot of pressure on people advancing ICBC injury claims in BC Supreme Court to consider settlement when faced with a Rule 37 formal settlement offer.

It will be interesting to see if our BC courts, when considering “the relative financial circumstances of the parties” will consider ICBC a party to the lawsuit of an ICBC injury claim. Typically, ICBC is not named as a defendant to a ICBC Injury tort Claim, instead those at fault for the collision are named and often they simply happen to be insured by ICBC. So ICBC is not formally a ‘party’ to most ICBC injury tort claims.

If the court is willing to consider the fact that the Defendant is insured when weighing the ‘relative financial circumstances of the parties‘ then this Rule is a welcome change for anyone advancing an ICBC injury claim. If not, perhaps the court is willing to consider this under “any other factor the court considers appropriate“.

Do you have questions about an ICBC settlement offer or the Rules of Court governing settlement offers in BC Supreme Court? If so click here to arrange a free consultation with ICBC Injury Claims lawyer Erik Magraken.

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.

Reasons for judgement were released yesterday by the BC Supreme Court determining fault for a 2004 motor vehicle collision which occurred in Vancouver, BC involving a BMW and a bicyclist.

The collision happened at the intersetion of Main Street and East 2nd Avenue in Vancouver, BC.  The Plaintiff cyclist was attempting to go through the intersection when the Defendant motorist turned left and collided with him.  The light was green and the cyclist did enter the intersection “in accordance with traffic signals” when the Defendant turned into him (in other words, on a green light).  The impact was significant as the Plaintiff “hit the passenger window of the car with enough force to smash the glass and he suffered personal injuries“. 

Who was at fault for this intersection crash was the issue to be decided at trial.  The trial proceeded by way of ’summary trial’ pursuant to Rule 18-A of the BC Supreme Court Rules.  For those not familiar with ’summary trials’ they are commonly referred to as ‘paper-trials’ because no witnesses testify in court, rather the lawyers present their cases through sworn affidavit evidence.  There has been much criticism of this rule over the years and BC personal injury lawyers seldom use this rule to advance ICBC claims to trial.

This case is interesting for Madam Justice Griffin’s analysis in determining fault.  The 5 main factors she considered in reaching her conclusion were

1.  The speed of the car

2.  The speed of the bicycle

3.  The light conditions

4.  The location of the bicyle whent he car began its left turn

5.  The response time of the bicycle rider

The key findings of fact made at trial were that “the Plaintiff was not speeding and was properly riding his bicycle in the correct lane, the curb lane, in accordance with the traffic signals.  It is undisputed that (the bicyclist) was in breach of the Motor Vehicle Act by failing to have a headlamp or reflectors on his bicycle….Given that (the bicyclist) had no headlamp or reflectors on his bicycle, (he) was also negligent in wearing dark clothing insread of bright and reflective clothing…(he) had no opportunity to avoid the collision.  Even though the BMW was clearly poised to mnake a left turn and had its left turn signal activated, there was no reason for (him) to expect that the BMW would turn in front of him.  He would have seen that it had given way to other traffic.”

Madam Justice Griffin concluded that “the bicyclist presented an immediate hazard when the BMW began to turn the vehicle to the left…..(the driver of the BMW) should have considered (the bicylcist) to be an immediate hazard and should not have proceeded with the turn until (the bicyclist) was safely through the intersection.  As such (the driver of the BMW) was negligent.”

When both parties are at fault for a collision BC courts must determine the degrees of fault as between them.  This is required by the BC Negligence Act.  Madam Justice Griffin ruled that the Plaintiff was 75% at fault for the accident and the motorist was 25% at fault.  What this means is that the Plaintiff would only be entitled to recover 25% of the value of his injuries from ICBC in his tort claim.

In reaching this conclusion Madam Justice Griffen ruled that

[62]            The streets of Vancouver are shared by drivers and cyclists.  Those who use the streets must anticipate each other and the limitations inherent in each other’s response time and visibility. 

[63]            The plaintiff took a very big risk by riding his bicycle in the dark without any form of illumination or reflection.  He ought to have appreciated the difficulty that drivers of motor vehicles have in seeing fast-moving dark objects.  While he may have counted on the street lights to illuminate him, he was extremely careless and showed little concern for safety.

[64]            In deciding to make a left turn across the intersection, Mr. Schwartz should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane. 

[65]            In conclusion, I apportion fault for the accident 75% to the plaintiff and 25% to the defendant.

This case is a difficult precedent for any BC cyclist injured in a BC car crash who either fails to wear reflective clothing or fails to have a headlamp or reflectors on their bicylce.  It may be troubling to know that a cyclist can be found largely at fault for a collision even though he is “not speeding” “riding in the correct lane and in accordance with traffic signals“  who has “no opportunity to avoid the collision” and have “no reason to expect (a car )to turn in front of him“.

What is striking about this case is the degree of fault attibuted to the cyclist despite all the above findings.  This case serves as a stark reminder that if a cyclist fails to wear refelctive clothing or a headlamp, it may not only increase the risk of collision, but can drastically reduce the settlement value of an ICBC claim following a collision.

If you are an injured cyclist or pedestrian in a BC car crash and at the time did not have ‘any form of illumination’ you should be prepared to address the results of this case in your claim settlement negotiations with ICBC.

Do you have questions about this case, or about a BC crash involving a cyclist or pedestiran, or the issue of fault in an ICBC claim?  Are you looking for a free consultation with an ICBC claims lawyer?  If so, click here to arrange your free consultation with ICBC claims lawyer Erik Magraken.

In reasons for judgement released today, Madam Justice Boyd of the BC Supreme Court awarded a 53 year old paramedic $35,000 non-pecuniary damages (pain and suffering) as compensatory damages for a shoulder injury.

The Plaintiff was injured in Surrey, BC when his bicycle struck an SUV that turned left in front of the Plaintiff as he tried to clear an intersection. The collision was significant in that the bicycle struck the right front passenger side wheel area of the SUV, causing the plaintiff to fly over the hood of the vehicle and land some distance away.

Both Liability (fault) and quantum (value of loss) were at issue in this ICBC claim that proceeded to trial.

The court held that the driver of the SUV was 100% responsible for this BC motor vehicle accident.

The court found that “the plaintiff was an experienced trained cyclist, very much familiar with the challenges of urban vehicular travel.” The court summarized the findings of fault at paragraph 35 of the judgement where it was held that :

[35] Thus, in all of the circumstances, I find that the plaintiff was travelling lawfully along 140th Street at Laurel Drive when the defendant turned into his path. The defendant negligently failed to ensure he could complete his left hand turn without first ensuring before doing so that there was no traffic approaching so closely as to constitute an immediate hazard, thus breaching s. 174 of the Act. By the same token I find the plaintiff had no opportunity to avoid the collision and that accordingly he was not contributorily negligent.

The Plaintiff’s injuries were quite significant but he fortunately went on to make a ‘remarkable’ recovery. The most serious injury was to the Plaintiff’s right shoulder. The court held that

“Relying on Dr. Boyle’s report, I am satisfied that the plaintiff’s shoulder injury has not resolved entirely and that he faces the likelihood of chronic recurring discomfort. Further, there is a risk of his symptoms progressing, perhaps some day necessitating arthroscopic surgery. Based on the last paragraph above, I conclude that while the progression of the symptoms is not likely to occur within the next 2-3 years, there is indeed a possibility this progression of symptoms may occur during the plaintiff’s retirement years, exposing him to a period of reduced capacity and perhaps ultimately to surgery. “

The court awarded damages as follows:

1. Non-pecuniary damages: $35,000

2. Loss of income: $8,750.36

3. Special damages: $809.33

Do you have questions about an ICBC injury claim involving injuries to a cyclist or questions about the icbc settlement process? If so click here to arrange a free consultation with icbc claims lawyer Erik Magraken.

Reasons for judgement were released today following a 3 day trial in Vernon, BC in which Mr. Justice Cole awarded a 35 year old plaintiff close to $90,000 in compensation for her losses and injuries as a result of a motor vehicle accident.

This case is worth a read for anyone advancing an ICBC claim or involved in ICBC settlement negotiations concerning the issue of ‘indivisble injuries’. That is, where an event other than the accident has contributed to the injuries sustained in the accident. I will say more about this below.

The Plaintiff was involved in a rear-end accident in Kelowna BC on June 30, 2005. Her vehicle was rearended by a truck driven by the Defendant. As a result of this incident she suffered from various soft tissue injuries and anxiety.

In early 2007, the Plaintiff was almost struck by a vehicle while she was in a cross-walk. This added to her anxiety issues.

The court heard from several medical experts who commented on the Plaintiff’s injuries. This is quite common in ICBC injury claims that proceed to trial as there is often 2 sides to the medical story. In this case, however, the medical evidence addressing the physical injuries was quite similar.

Dr. Laidlow, a physiatrist who often conducts ‘independent medical exams’ for ICBC, testified that the Plaintiff will be “prone to mechanical lower back pain…and may require the odd use of anti-inflammatories during times of flare up“.

Dr. Travlos, another physiatrist well versed in diagnosing and treating injuries related to ICBC claims, stated that “(the plaintiff’s) current residual neck and shoulder symptoms are a result of tjhe accident. It is likely that these symnptons will slowly continue to improve and ultimately resolve….the Plaintiff’s tailbone symptoms are clearly an ongoing issue…..the nature of her current low back / pelvic symptoms is intermittent and this bodes well for further recovery.”

The court also heard from the plaintiff’s family doctor who testified that there was room for improvement in the Plaintiff’s condition.

Possible future treatments for the injuries included trigger point injections, diagnostic injections, a facet joint rhizotomy and medicaitons.

In the end the court concluded that the Plaintiff sufferd a soft tissue injury “that would be described as the upper end of a moderate soft tissue injury that should resolve itself over time“. The court also found that the Plaintiff suffered from anxiety as a result of the collision in 2005 and the near collision in 2007. The Plaintiff claimed she suffered from Post Traumatic Stress Disorder (PTSD) as a result of the collision and this was supported by the evidence of Dr. Neilson. The court, however, held that the Plaintiff did not make out this claim as the Plaintiff did not prove all the facts that were underlying Dr. Neilson’s diagnosis of PTSD.

The court awarded damages as follows:

Pain and Suffering (non pecuniary damages) $60,000

Special damages: $6,045

Past wage loss: $19,522.02

Future medical care: $400

Future Therapy: $1,000

This case did a great job reviewing 2 areas of law which frequently come up in many ICBC claims, namely claims for ‘loss of future earning capacity’ and claims where intervening events add or contribute to accident related injures.

As in many ICBC claims the Plaintiff had an intervening event which added to her anxiety. When valuing the injuries the court did a great job in summarizing how a court is to do so when the subsequent event caused an ‘indivisble injury’.

The court referenced some of the leading authorities in concluding the PTSD claim gave rise to an ‘indivisble injury’.   Most experienced ICBC claims lawyers are familiar with these authoritative cases which the court referred to, particularly:

Athey v. Leonati

EDG v. Hammer

Ashcroft v. Dhaliwal

The court concluded that “I am satisfied, in this case, that the two incidents that the plaintiff was involved in are indivisble. The anxiety caused to the plaintiff by the second incident is directly connected to the accident involving the defendant. Since the individual that caused the second accident was not before the court, as was the case in Ashcroft, where there was a settlement of the claim, the defendant is liable for all of the plaintiff’s damages”

Do you have questions about this case or a similar ICBC case involving soft tissue injuries, post traumatic stress or an intervening event?  If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.