Settlements
We settle more than 99% of claims before trial, and ultimately the decision to go to court is always up to the client.
While many injury firms highlight various settlements they have obtained for their clients, our view is that this offers little insight into the quality of their services. How does one know if the claim settled for far less than what it was actually worth?
A far more impactful metric, and one that shows whether a law firm is willing and prepared to go to trial on behalf of their clients, is how the law firm actually performs in court.
As such, while we do not publish the results of our settlements, we believe that our reputation among insurance companies as a firm that is always willing to take a claim to trial results in higher settlements for all of our clients.
Published Cases
Below is a sample of the cases we have taken to court over the last several years.
2022
- Montazamipoor v. Park, 2022 BCSC 140 read more
In Montazamipoor v. Park, 2022 BCSC 140 the Court awarded over $750,000 for injuries our client sustained in a July 2018 accident, far exceeding ICBC’s $60,000 offer before trial.
Our client was a 35-year-old mother of two young children, for whom she was the primary caregiver. She was also working part-time in an immigration firm while studying for her real estate licence. Regarding her injuries, the Court stated:
[4] There is no issue that the accident caused an injury to Ms. Mansouri’s left neck and shoulder, extending to numbness in her left fingers associated with compression of her ulnar nerve. The cause of the injury and the nerve impingement is myofascial and, while there has been some improvement in her condition, the defendants do not challenge the independent medical evidence that her prognosis for further improvement of these injuries is guarded.
ICBC attempted to play down the impact the injuries have had on our client’s life. They argued that she and her lay witnesses “may have “embellished” the extent of her injuries”. The Court rejected this argument as follows:
[13] I find that Ms. Mansouri did not overstate her injuries; to the contrary, her evidence and the evidence of Dr. Squire establishes that Ms. Mansouri has, from the outset, approached her injuries as temporary ones that can be overcome with exercise and diligence, despite their persistence. She readily described where she has improved and which injuries bothered her less. My overall impression from her testimony is that Ms. Mansouri feels some shame with respect to her post-accident condition, and has worked hard to overcome it.
Furthermore, the Court took issue with ICBC’s reliance on their expert who did not assess our client but merely criticized our own occupational therapist’s opinion:
[53] … I find that I can place only very limited weight on Ms. Branscombe’s opinions. Although she testified that she was not providing her own opinions and merely pointing out potential pitfalls in Mr. Kowalik’s conclusions, those potential pitfalls frequently amount to nothing more than questions about whether Mr. Kowalik took certain factors into account. She acknowledges that Mr. Kowalik may well have considered all of the questions she raised, and that much of her critique amounts to seeking clarity around questions that may well be addressed in the report already.
- Mak v. Blackman, 2022 BCSC 931 read more
The Court awarded our client $445,489, more than five times the $80,000 that ICBC had offered our client for injuries our client sustained in two accidents occurring June 2018 and March 2019.
Our client was a 43-year-old wife and mother of two young children. She was also a business analyst at Central 1. Addressing her injuries, the Court stated:
[140] Ms. Mak has suffered soft tissue injuries to her neck, shoulders, low back, and wrist. Her pain is flared from lifting, household chores, hiking, kayaking, badminton, running, and is worse when she attempts to do computer work for long hours. It is hard for her to sit for long road trips or flights. The pain wakes her up at night, and her sleep is not refreshing. The pain and sleeplessness is a cycle.
The expert physiatrist for ICBC claimed that our client’s limitations resulted from being scared of getting hurt and argued that pain has to be actively injuring a person further before they can limit their work or social life. The Court made short shrift of this argument as follows:
[94] Dr. Acharya’s opinion on the relationship between pain and limitations would lead to the conclusion that a person who has chronic pain syndrome must endure constant flare-ups of pain at a significant detriment to their quality of life simply because they are not further damaging their muscles and ligaments. With respect, this conclusion cannot be correct. While pain is undoubtedly subjective, it is real and the effect it has on people’s lives cannot be ignored. It is reasonable to expect an injured person to engage in activities, even where they cause some pain. It is not reasonable to dismiss the impact that pain can have entirely.
Moreover, this expert’s apparent bias was exposed during cross examination. The expert first insisted our client’s wrist injury was not caused by the March 19 accident, but when cross examined and presented with the clinical records of our client, he conceded it was indeed possible:
[97] … Dr. Acharya explained that he sees patients with wrist injuries, including TFCC tears, frequently. In his opinion, Ms. Mak’s TFCC tear was not caused by either of the Accidents. He based this conclusion, in part, on his view that an individual suffering a TFCC tear arising from a physical trauma would report pain shortly after that trauma and he did not believe that Ms. Mak had done so. However, on cross-examination, Dr. Acharya acknowledged that there were indications in the clinical records following the Second Accident that showed symptomatology that either could or did show right wrist symptoms related to a TFCC tear. Ms. Mak also told Dr. Acharya this but he seems to have disregarded it and he provided no explanation for having done so.
However, later in the cross examination, the expert fell back to his earlier stance of asserting the accident didn’t cause the injury, refusing to acknowledge what he had just earlier admitted to. He revealed the weakness of his position and contradicted himself in the process. The inconsistency of the expert’s testimony was observed and not viewed favourably by the Court:
[99] … Dr. Acharya’s reluctance to concede the possible link between the Second Accident and the wrist injury after being shown the clinical records indicating that Ms. Mak reported pain shortly after the accident is troublesome. […] I give Dr. Acharya’s opinion with respect to Ms. Mak’s wrist injury little weight.
Mak v. Blackman is indicative of how ICBC’s experts call into question their own supposed role of being “independent”. They will make irrational and biased arguments in order to diminish an injured person’s compensation. These arguments can be disassembled with conscientious and incisive cross examination. Mussio Goodman is very experienced in knowing what to expect from ICBC’s experts and will make sure that our client’s case is safeguarded from those who seek to taint it.
- Tompkins v. Meisters, 2022 BCSC 1289read more
In the BC Supreme Court, ICBC sought a s. 83 application to deduct approximately $300,000 from the damages our client was awarded from the trial judge’s decision on October 25, 2021. The awarded damages included $190,000 in non-pecuniary damages and loss of housekeeping capacity, $255,000 for future loss of earning capacity, and future care agreed to $136,968.32.
The defendants sought to deduct $170,726.40 from Ms. Tompkins’ future loss of capacity award, but the judge, agreeing with counsel for the plaintiff, reduced this amount deducted by 50%. ICBC Claims Manager Dave Wright confirmed that ICBC would pay up to $300 per week in temporary total disability (“TTD”) payments. Counsel for the plaintiff successfully argued that the language used by ICBC, specifically the “up to” $300 per week, showed uncertainty about Ms. Tompkins’ entitlement to future TTD payments and what amount those payments would be. For example, if Ms. Tompkins tried to go back to work, but was unable to, ICBC would be able to pay her $0 if they decided that Ms. Tompkins was not totally disabled anymore. The judge agreed:
[17] In my view, the language employed in Mr. Wright’s affidavit does introduce an element of uncertainty as to how much TTD benefits ICBC will pay Ms. Tompkins going forward. ICBC will pay “up to” $300.00 a week. This stands in contrast to the much more certain language seen and relied on in Kingston, Skinner and Aarts- Chinyanta, where ICBC committed to pay specific amounts for specific periods of time.
ICBC promised, as per the Claim’s Manager’s confirmation, to pay TTDs to the plaintiff until age 65, but the promise’s uncertain language used left them with a way to get out of it and deduct that entire amount. However, the judge agreed with counsel for the plaintiff’s argument and cut down their requested deduction by 50%. Thus, the plaintiff, assuming remains completely disabled, will get 33% more than her Loss of Capacity award at trial because ICBC decided to be devious about TTDs.
Additionally, ICBC applied to deduct $71,816.29 from Ms. Tompkins’ future care award to reflect Part 7 benefits paid and payable to her. Counsel for the plaintiff argued, again successfully that the deduction should be reduced by 20% to account for various contingencies and because Ms. Tompkins’ future care needs may exceed the maximum benefits payable to her under her Part 7 policy:
[29] … [A]fter the deductions sought by the defendants, there would only be about $40,000.00 left in her Part 7 policy. In this regard she refers, for example, to the fact Dr. Shuckett recommended she attend a pain clinic, which should be funded under Part 7, and that was not ordered as part of the tort award. She also submits that the amount that ICBC pays for particular treatments could change over the next two decades, and that some of the items ordered may be considered ameliorative rather than restorative, and thus not compensable under Part 7.
This case is an example of the strategies ICBC resort to in order to minimize awards granted to plaintiffs. Mussio Goodman is well versed in these schemes and will make sure we bring them to the Court’s attention when advocating for our clients.
2021
- Morgan v Ziggiotti, 2021 BCSC 106 read more
In this case, the Court awarded $753,726 for injuries sustained in a December 2016 motor vehicle accident, more than five times ICBC’s final offer prior to trial.
The Plaintiff was a 28 year old lifeguard and swimming instructor at the time of the accident. The Court summarized her active pre-accident life noting:
[10] Prior to the Accident, Ms. Morgan enjoyed extremely good health and a high level of physical fitness. She was a very athletic person who enjoyed and excelled in a wide variety of athletic activities including swimming, walking and hiking, tennis, running, horseback riding, and team sports, among others. Ms. Morgan took great pride in her athletic achievements, which she viewed as the one thing she was good at. Being an athlete was key to her identity. Physical activity was her means of coping and self-care.
As a result of the collision the Plaintiff suffered an injury to her knee. Despite her best efforts at treatment, the injury turned out to be permanent, causing her sharp pain when she attempts physical activity. She also experiences mechanical pain in her hip and lower back, which seize up. She is constantly fatigued, and has given up her life in order to manage her pain.
The Plaintiff is unable to pursue her line of work as a lifeguard as a result of the pain caused by the intense physical requirements of the work. Despite the Plaintiff’s learning disability and her reliance on her physical abilities to sustain her financially, ICBC argued that her life had not been particularly diminished by her injury, and she would not suffer much income loss in the future due to her inability to lifeguard. The Court disagreed noting:
[171] While previous cases provide some guidance, I must assess Ms. Morgan’s damages having regard to her particular circumstances and injuries. What is most significant in her case is the loss of her athletic ability and the sense of identity that was intimately related to that ability. Through sport, she was able to overcome the shame she felt due to her learning disabilities. She was a young woman at the time of the Accident, and it has dramatically altered her life. In my view, an award of $120,000 is appropriate for pain and suffering in Ms. Morgan’s case.
…
[183] I have already set out the expert medical evidence with respect to the impact of Ms. Morgan’s injuries. The expert evidence is clear that Ms. Morgan will, because of her injuries, never work again as a lifeguard and swimming instructor. Further, as set out in Mr. Pakulak’s report, the overall number of jobs she would be able to compete for, given her physical limitations, is significantly limited.
…
[190] In short, Ms. Morgan’s career prospects, given her inability to work as a lifeguard and swimming instructor, her physical limitations, and learning disabilities, are very guarded indeed.
In arguing the case, ICBC relied on the opinion of orthopedic surgeon Dr. Robin Rickards. Dr. Rickards admitted that with her current symptoms the Plaintiff could not engage in the physical activity necessary to be a lifeguard. However, despite admitting that he could not be sure of his diagnosis until an invasive surgery was performed, Dr. Rickards diagnosed the Plaintiff with a condition that could be easily repaired. The Court noted Dr. Rickard’s bias, which was uncovered by an effective cross examination, and preferred the opinion of the Plaintiff’s far more experienced orthopedic surgeon, Dr. Stone:
[123] Dr. Rickards has not performed any surgeries since the end of 2010 when he retired from his orthopaedic practice due to his own back injury. He subsequently did some training in 2014 for chronic pain management with a focus on the back and the neck, and then practiced in this area for about two years, but stopped due to a lack of patients. He retired entirely from practice in 2017 to write medical legal reports. All of his recent educational activities in the last 10 years have focused on areas other than the knee. He has not seen patients in regards to treatment for knee injuries in at least the last three years if not longer.
[124] Dr. Rickards agreed that the more recent medical literature would be more complete than literature from 34 years ago.
[125] Dr. Rickards was clear that he would not defer to Dr. Stone’s opinion with respect to the appropriate diagnosis. He testified that Dr. Stone in fact did not make a diagnosis, saying that knee pain is knee pain syndrome, and not a diagnosis.
[126] Dr. Rickards agreed that he would defer to a psychiatrist as they have more training and experience to opine on psychiatric issues. He also agreed that someone who sees patients more often than he does has more experience than he does in treating a hypothetical injury. However, despite agreeing with these propositions, Dr. Rickards would not concede that any doctor may be in a better position than himself to opine on Ms. Morgan’s injury.
[127] I agree with Ms. Morgan that Dr. Rickards displayed a tendency towards being argumentative and defensive in support of his opinion.
[128] On cross-examination, Dr. Rickards admitted that he could not be sure what the diagnosis is until his recommended surgery is done. He further admitted that there are risks to surgery, and, in contrast to what he wrote in his report, that some people will actually be left in worse pain after the surgery. Despite admitting that he cannot be sure of the diagnosis, and despite noting that the symptoms of his diagnosis and that of Dr. Stone and Dr. Hershler are similar, he refused to concede that his diagnosis might not be correct.
[129] Further, Dr. Rickards admitted that his report was at the very least incomplete. He did not include anything about Ms. Morgan stating she had a pre-existing ankle condition or any evidence of a pre-existing ankle condition in the records. Despite Ms. Morgan indicating she had no ankle complaints, he diagnosed her as needing surgery for a problem unrelated to the Accident.
[130] In contrast, Dr. Stone, who has more relevant and recent experience and training than Dr. Rickards, provided a measured and unbiased opinion. He freely admitted that the symptoms of both his diagnosis and Dr. Rickards were similar, but noted that in terms of Ms. Morgan’s prognosis there is no reliable evidence that an arthroscopic procedure would lead to a better outcome for her.
[131] I agree with Ms. Morgan that Dr. Rickards is not in a position to keep up with the current medical consensus on either the diagnosis or the prognosis or the outcome of his suggested surgery. This is in contrast to Dr. Stone, who is an associate professor with three clinical practices, who regularly operates on knees, and attends numerous lectures and conferences with a specific focus on the area he concentrates on in his clinical practice: knees and hips.
[132] For all of these reasons, I prefer Dr. Stone’s evidence to that of Dr. Rickards. I accept Dr. Stone’s opinion about the appropriate diagnosis for Ms. Morgan’s knee symptoms, their treatment and likely prognosis.
This case provides a good illustration of the mentality and tactics pervasive at ICBC, which are to try to reduce payments to injured persons by minimizing the impact of injuries, and hiring biased doctors to provide them with the medical opinions they want.
- Gill v Borutski, 2021 BCSC 554read more
In Gill v Borutski, 2021 BCSC 554 the Court awarded $729,457.13, significantly more than what ICBC offered prior to trial for a very complex case. Prior to the collision the Plaintiff was a physically and psychiatrically vulnerable person, having been diagnosed with fibromyalgia. However, the Court found that she was also high functioning, “fully employed and fully engaged with family and friends, almost all of whom were unaware of her physical complaints”.
As a result of the collision the Plaintiff suffered soft tissue injuries, which resulted in her psychiatric health deteriorating:
[41] In the accident, Ms. Gill suffered soft tissue injuries to her back and shoulder, giving rise to headaches and back and shoulder pain. She was a vulnerable personality who came to believe that she had also suffered neurological injuries. This sent her into a downward spiral of unsuccessful treatments and anxiety concerning her treatments, which led her to subjectively experience further symptoms. She became focused on her treatment, and the focus made her worse. As Dr. Travlos puts it:
The result now is that her entire daily being is focused on her symptoms and she in turn is highly focused on every aspect of her symptoms, obstructing her recovery.
ICBC argued at trial that the Plaintiff’s predisposition to injury would have led to her condition deteriorating regardless of the collision. Thanks to the evidence assembled by the team at Mussio Goodman, the Court made short shrift of this argument:
[48] I am not persuaded that there is a real and substantial possibility that Ms. Gill’s condition would have deteriorated in any event. In September 2017, her condition was stable. She seldom missed work and was not complaining to her family and friends. It is highly unlikely that her condition would have deteriorated spontaneously, without a trigger of some kind, such as a motor vehicle accident. I should not take into account the possibility of a trigger in the form of an event caused by the negligence of a third party.
[49] I find that the accident was the cause of Ms. Gill’s injuries and her damages should not be discounted by reason of her predisposition to injury.
ICBC also argued that the Plaintiff’s presentation was not credible, and that the Court should deny her compensation on that basis. The Court noted that it was more complicated than this, and pointed out that her presentation was actually a part of her condition:
… One of the physicians, Dr. Gillian Simonette, remarked on a disconnect between Ms. Gill’s complaints of pain at a very high level (at 9 on a 10 point scale) and her apparent presentation. Some of this correlates with the psychiatric diagnoses that offer the best explanation for her current condition.
This case provides a good example of how sometimes a person’s physical and psychiatric health can very impacted by an accident in complex ways. An insurance company will always want to boil the case down to the most basic and simplistic terms, and will point to any cause for an injured person’s condition other than the accident. Mussio Goodman will ensure that the full story gets put before the Court.
- D'Arcy v. Salimy, 2021 BCSC 551read more
In this case, ICBC offered $250,000 before trial. The judge awarded:
[177] The following is a summary of the amounts awarded to Ms. D’Arcy, which total $544,139:
a) non-pecuniary damages – $125,000;
b) past loss of earning capacity – $110,000;
c) loss of future earning capacity – $253,000;
d) cost of future care – $25,700 (consisting of: $14,500 for medication and supplies; $4,000 for psychological therapy; $2,600 for vocational and occupational therapy assessment; $2,400 for physiotherapy; and $2,200 for kinesiology services; and
e) special damages – $30,439.
- Debruyn v. Kim, 2021 BCSC 620read more
In Debruyn v. Kim, 2021 BCSC 620, the Court awarded our client $380,375, over four times what ICBC offered prior to trial. Our client was a 31-year old single mother with a passion for personal fitness and exercise who was trying to start a career as a personal trainer after raising her child alone and recovering from a debilitating stroke in her early 20s. The accident rendered our client a shell of herself, suffering physical injuries including a tear in her shoulder, as well as PTSD and an exacerbation of a previously under-control panic disorder with agoraphobia. She became terrified of leaving her house, requiring hours of preparation to take her daughter to school – a 10 minute drive from her home.
ICBC challenged our client at trial, arguing that that the plaintiff was neither credible nor reliable. The court dismissed this argument, noting:
[111] The plaintiff was a very good witness. She was forthright, sincere, careful, and steadfast in her evidence. She did not attempt to embellish or exaggerate her symptoms or limitations. If anything, she tended to downplay her abilities before the Collision and enhance them after the Collision. Her genuineness as a witness was bolstered by her demeanour throughout, particularly during cross-examination. The truthfulness of her evidence was repeatedly borne out on cross-examination. She fully explained what appeared to have been inconsistencies between the clinical records and her evidence in court. She was undeniably a balanced, authentic, and sympathetic witness whose evidence I have no hesitation accepting in its entirety as credible and reliable.
Aside from challenging our client’s credibility, ICBC also sought to argue that her symptoms and limitations were due to her pre-existing health issues. They also sought to make her miscarriage and the termination of her pregnancy as a focal point of the trial by arguing those were the cause of her psychological symptoms rather that the accident. This was rejected by the court, which noted:
[116] Despite these pre-existing physical and psychological issues, the plaintiff was physically functional and active, in a positive place psychologically, and was motivated to become a certified fitness instructor.
…
[119] I do not accept that the plaintiff’s post-Collision miscarriage and pregnancy termination were intervening events that contributed to the psychological issues she is currently experiencing. Although there is no doubt that these events were depressing events for the plaintiff, as they would be for any person, her PTSD and other psychological issues had manifested long before these events occurred. The defendant has failed to establish that these events warrant a reduction in the plaintiff’s damages award.
Due to the complex physical and psychological nature of our client’s symptoms, a host of doctors and other medical experts provided evidence about our client’s condition. The court lauded three of our experts in particular, noting:
[103] Drs. Syal, Helper, and Muir were impressive witnesses who gave their respective evidence in an entirely objective and helpful manner. Indeed, each was the epitome of an expert who both understands and demonstrably carries out his
role in the proceedings, namely, to assist the court rather than to advocate for one party or the other. I accept their opinion evidence, as supplemented by their oral testimony, without qualification. Dr. Muir, in particular, was a breath of fresh air in the atmosphere of medical expert evidence typically heard by this court in personal injury litigation. He was genuinely focused on what can and should be done to help the plaintiff through her problems. His candid evidence was both helpful and appreciated.
ICBC’s next line of argument was that the Plaintiff failed to mitigate her injuries but not undergoing a recommended shoulder surgery in 2018. While the experts agreed that an earlier surgery had a higher likelihood of success, they also noted it was necessary to reduce the swelling in her arm first. More importantly, they also acknowledged that her psychological symptoms presented a significant barrier to her treatment. The court acknowledged this, noting:
[171] I find that the plaintiff understood and appreciated the advice of her medical practitioners to undergo cortisone injections followed by arthroscopy labrum repair to her left shoulder. However, I accept the evidence of Dr. Muir that the plaintiff’s failure to engage in these treatments was likely neither deliberate nor voluntary, but rather the result of her being psychologically incapable of following the advice due to her Collision-related PTSD on top of her pre-existing panic disorder.
This case is illustrative of the value of effective experts. The speculative and biased arguments frequently made by ICBC and seen here can be overcome with a competent, honest, and fair medical expert. Mussio Goodman is well-versed in dealing with ICBC’s experts, and can ensure that the most effective voices are before the court to present a fair case for any client.
- McColl v Sullivan, 2021 BCCA 1881read more
In this case, we successfully defended an ICBC appeal of our client’s $1,542,866 award for future loss of earnings.
In the original decision McColl v Sullivan, 2020 BCSC 137, the judge agreed with our submissions that the female plaintiff’s future loss of earnings should be calculated using male labour market statistics. The male statistics increased the award significantly, by about $300,000.
In arguing that the male labour market statistics were more appropriate, we noted that the plaintiff was working as a film editor, work for which there is no statistical difference in pay between male and females. Our client also intended to work full time for the rest of her career, with or without children. Recognizing that female statistics factor in the likelihood that a female would be paid less than a male or would take more time off than a male for family formation, we argued that this would visit unfairness on the plaintiff.
ICBC appealed to the BC Court of Appeal, arguing that the judge erroneously applied male labour market statistics to a female as a blanket principle, and that female statistics were more appropriate given the evidence.
We argued that the trial judge clearly applied a cautious, individual approach, and that her finding of fact was well supported by the evidence and should not be disturbed.
The Court of Appeal essentially held that it was unclear from her reasons for judgment how the trial judge settled on male multipliers, and remitted the issue back to her for clarification and to assess the overall fairness of the award.
We then reappeared before the trial judge, who dismissed ICBC’s arguments and affirmed the original award, while also awarding costs against ICBC for the hearing.
- Tompkins v Meisters, 2021 BCSC 2080read more
In Tompkins v Meisters, 2021 BCSC 2080 the Court awarded approx. $710,000 for soft tissue injuries sustained in a June 2017 accident, close to triple what ICBC offered prior to trial.
The Plaintiff was a 49 year old mother of two and full-time care aid, looking after the elderly. As a result of the Accident the Plaintiff was rendered disabled from her work and social life:
… Her most significant injury is to her right shoulder. She is right‑hand dominant. She has reduced range of motion in both her shoulder and neck. She suffers from chronic pain.
[15] Ms. Tompkins’ shoulder is aggravated by many activities, such as washing the dishes, vacuuming and pruning in her garden. She has experienced some improvement in her shoulder since the Accident, but she remains in constant pain. As a result of pain on the right side of her body, in particular her shoulder, she has disrupted sleep. The activities of daily living, such as bathing, dressing and washing her hair, are adversely affected by her shoulder injury. The pain radiates down her arm and up her neck, causing numbness in her right ring finger and thumb. She also has low back pain on the right side, which radiates down her right leg.
[16] Ms. Tompkins feels fatigued, sad, hopeless and depressed. She has gained over 60 pounds of weight since the Accident, which she finds embarrassing and limits her activities. She has withdrawn from most social activities. Ms. Tompkins’ relationships with her family have suffered. She feels she is no longer the mother her children deserve. She is irritable and fatigued, and unable due to pain to be physically intimate with her husband. She feels dependent on her family for everything.
[17] As a result of her inability to work since the Accident, Ms. Tompkins’ family has experienced significant financial hardship, which has been hard on her and her husband. For a period of time, they were in danger of losing their home, and have had to use all of their RRSPs and Mr. Tompkins’ inheritance from his father to pay their bills.
In an attempt to argue the Plaintiff’s compensation should be reduced, ICBC argued that the Plaintiff should have attended more treatment than she did despite her financial inability to do so. That the Plaintiff should be penalized for a lack of money was not an argument the Court allowed:
[49] Considering the evidence on this issue, I find that the defendants have not met their burden of establishing that Ms. Tompkins acted unreasonably in not attending physiotherapy until 2019. She had attended a physiotherapist three times in the months immediately after the Accident, and had not found it beneficial. She did receive some massage therapy, which she found beneficial. She reasonably acted on Dr. Wilson’s advice in declining active rehabilitation in March 2018 until she had received sufficient physiotherapy.
[50] Given the dire financial situation the Tompkins found themselves in as a result of Ms. Tompkins’ inability to work, they could simply not afford the $40.00 per visit up front fee they would have had to pay at the physiotherapist approved by ICBC in March 2018. As mentioned, there is no evidence as to when the $750.00 advance was provided, but whenever it was provided, it would not have gone far in paying for therapy and medications. If it was used to pay other bills, I cannot find that the Tompkins acted unreasonably in doing so.
2020
- McColl v. Sullivan, 2020 BCSC 137read more
In McColl v. Sullivan, 2020 BCSC 137, Madam Justice Baker awarded our client $2.2 million dollars after a ten day trial. It is notable that our client wanted to move on from her injury claim a long time ago, and was prepared to accept far less than what the Court awarded. However, since ICBC’s settlement offer was only $435,000, five times less than what the Court determined her claim was worth, she therefore had no choice but to take her case to trial with her lawyer, Eric Goodman.
Our client was a 25 year old woman who was rear-ended by two separate drivers a few months apart. She had just completed her education at Emily Carr University and obtained a highly sought after position in the lucrative film industry. Her talent and drive was remarked upon by all those that knew her, from the professors that taught her to the managers that quickly recognized her skills as an editor. She was described by her friends and colleagues as a friendly, kind, vivacious young woman who was enjoying her life and her new career.
As a result of the two collisions, our client suffered injuries to her neck, chest and back, which eventually developed into a permanent and debilitating nerve condition called Thoracic Outlet Syndrome (“TOS”). Her TOS causes numbness, tingling, and excruciating shooting pains down her right arm and hand, effecting her ability to perform even the most basic tasks such as chopping vegetables, using a keyboard, or washing her hair.
As a result of her injuries, our client was unable to pursue the editing career for which she trained, and was entitled to compensation for the wages she would have earned had the accidents not happened. The evidence we tendered proved that her career path was very lucrative. In particular, our client’s former boss testified as to the average earnings of our client’s specific vocation, and confirmed that our client was earmarked for future advancement due to her talent and diligence.
In response, ICBC relied on general statistics for job categories that were inapplicable to the specific career our client was actually pursing. Unsurprisingly, these statistics were for low-level work and vastly undervalued what our client was on track to earn.
Madam Justice Baker agreed that the evidence showed that our client was far more than a statistic, stating:
…I find the evidence of Ms. Turner does suggest the industry averages put forward in the evidence of Mr. Nordin and Mr. Lawless are understated for the editing work Ms. McColl would have done at Paperny. As such, I find that there is a real and substantial possibility that Ms. McColl’s loss of income is higher than the losses would be based on the reports of Mr. Nordin and Mr. Lawless…
I find that Ms. McColl has established that her earning capacity has been impaired as a result of the injuries she sustained in the accidents. Ms. McColl had successfully trained in a specialized career, obtained a good job in the film industry, and was doing very well in that job. This career would have returned her a very good income. The evidence before me was overwhelming that she will no longer be able to pursue the career she trained in and loved.
This case also provides another example of ICBC employing doctors who provide opinions that are deemed to be biased towards ICBC in the face of objective evidence. In this case, ICBC hired a vascular surgeon who opined that our client would have experienced her debilitating condition regardless of the collisions. A strong cross examination revealed the weaknesses of Dr. Fry’s opinion, leading to a stinging rebuke from Madam Justice Baker:
For the reasons I set out below, I did not find Dr. Fry’s opinion to be helpful.
Dr. Fry engaged in what I would describe as a credibility assessment of Ms. McColl, looking for inconsistencies between what she told him and what was recorded in the medical records he was provided […] Dr. Fry implied that Ms. McColl was not being honest with him about important pre-existing myofascial pain symptoms. I do not agree…
Dr. Fry also advocated that Ms. McColl would have eventually developed TOS due to her likely having a cervical rib or an elongated process of C7. He referred in a general way to literature supporting his view, but did not specify which article or study supported him. He overstated the incidence of TOS arising from a cervical rib by stating that up to 1 out of 10 people with a cervical rib will develop TOS, without clarifying that only 1% of the general population have such a cervical rib. From such a tiny fraction of the population which is vulnerable to TOS from this abnormality, Dr. Fry goes on to conclude that it is more likely than not that Ms. McColl would develop TOS. He came to this conclusion without any actual evidence that Ms. McColl has such an abnormality at all, and agreed under cross examination that he had not examined the x-ray of Ms. McColl’s cervical spine which indicated no acute bony abnormalities.
In addition to the egregious deficiencies I have identified above, I agree with Ms. McColl’s assessment of Dr. Fry’s report in general, including that Dr. Fry has included highlighted commentary throughout his report which advocates for the defence position, ventures into fact finding within the purview of the court, and challenges the honesty of Ms. McColl. Further, Dr. Fry ignored medical evidence which is not helpful to the defence position, including General Practitioner records which disclose no physical complaints prior to the first accident, and medical records which indicate numbness in the fourth and fifth fingers in Ms. McColl’s right hand.
The approach of ICBC to our client both in terms of quantifying her loss using inapplicable statistics, and using public money to hire biased medical experts, illustrates why the proposed shift to ‘no fault’ insurance in our province will leave the most vulnerable injured persons short changed.
Under the new system, our client would have received zero dollars for her pain and suffering despite having a permanent and extremely painful condition that ruined the career path she worked so hard to achieve. She would have had no access to a lawyer to fight for her rights, and would have been left without even basic funding for treatment once ICBC hired a biased expert to state that her condition would have developed regardless of the collisions.
Even if our client had cleared the obstacle of ICBC’s biased experts, her wage loss would not have been based on what her career would have been. Rather it would have been calculated based on her entry level income at the time of the MVA, a difference of hundreds of thousands of dollars.
This claim could have settled a long time ago if ICBC was run like a private, efficient corporation with some semblance of accountability. With the arrival of “no fault”, and without lawyers or judges to provide checks and balances, ICBC is about to get a whole lot worse.
- Cox v. Acapulco, 2020 BCSC 1135read more
In Cox v Acapulco 2020 BCSC 1135, Mr. Justice Walker awarded our client over $280,000. ICBC offered her $47,000 before trial, forcing her to take her case in front of a judge.
The Court sided with our client, a 57-year-old woman who moved to Canada 36 years ago. She was involved in two accidents, one in May 2015 and the second in July 2016. As a result, she suffered numerous injuries to her neck, back, and shoulder, which significantly impacted her ability to live her life and work. While she tried to maintain her ambitious work schedule, her continued requests to her employer for support caused her to be dismissed from her company. She used her sterling reputation in the industry to obtain a few subsequent jobs, but each proved too much in light of her injuries and pain. She ended up assisting one of her daughters with a uniform company start-up, providing contacts and valuable insight from her years of experience in the industry.
Before the accidents, our client was energetic, physically active, organized, motivated, well-liked, and cheerful before the accidents. She was a proud single mother, raising 4 children on her own while building up a lucrative career as a salesperson. She was actively involved in her temple and went salsa dancing 4-5 times per week. However, her life was drastically changed following these accidents. She suffered injuries to her neck, back, and shoulder, as well as myofascial pain syndrome and tension headaches. She was no longer able to live the full, rich life she previously led.
In response to our claim for fair compensation for our client’s injuries and limitations, ICBC levied a series of arguments against our client, all of which Justice Walker rejected. The case was marked by a clear pattern of us providing concrete evidence of our client’s injuries and limitations, and ICBC countering with arguments that lacked any evidentiary basis.
ICBC primarily argued that the accidents merely exacerbated some pre-existing conditions. This argument was based on a handwritten clinical note from a chiropractor, an incident where our client was prescribed pain medications several years before the accidents, and the testimony of our client’s friend about when our client stopped dancing. Justice Walker dismissed this argument as speculative, noting that ICBC did not verify the chiropractic record with the chiropractor or our client, the client’s family doctor advised those pain medications could have been prescribed for any number of reasons, and that the friend was confused about dates and was therefore unreliable in this regard. Justice Walker concluded:
Thus, there is no evidence to establish the defendants’ theory that Ms. Cox suffered from pre-existing injuries or symptoms at the time of the First Accident…
There is also no evidence to establish a measurable risk or a real and substantial possibility (as opposed to speculation) that any of Ms. Cox’s pre-First Accident neck or back stiffness would have manifested as an injury in future absent the Accidents. Nor is there any evidence to establish that the injuries she sustained in the Prior Motor Vehicle Accident were aggravated or contributed to the injuries she sustained in the Accidents.
In this case, because ICBC was unwilling to consider our client’s reasonable offer, the corporation will likely end up paying twice the costs for going to trial. This is indicative of the widespread unreasonableness that permeates ICBC. Having to pay double costs provides a measure of accountability where ICBC refuses to make fair offers to injured persons. With the newly passed “no-fault” legislation coming into force next year, this accountability will be gone, giving ICBC free-reign to treat accident victims even more unfairly than it already does.
2019
- Webber v. Sullivan, 2019 BCSC 1522read more
This case involved a deceased mother who disinherited her two daughters in favor of her two sons.
The will left the entire estate to one of the sons, the other having been provided for with a substantial gift before the mother passed away. The estate was valued at $434,000.
The case dealt with lengthy and difficult family history, with a number of complicating dynamics including allegations of child abuse. The defendant sons denied that our clients were entitled to anything from the estate. The defendants made allegations of estrangement and relied on the deceased’s will that indicated our clients were “uninvolved”.
At trial we argued that the will did not make adequate provision to our two disinherited clients. Evidence of continued contact with deceased through phone calls and visits was adduced. It was argued that the deceased had not met her moral obligation to provide something for our clients, and there was no credible evidence to suggest that our clients had done anything that would justify the deceased cutting them completely out of the will.
Madam Justice Horsman agreed, writing:
[172] Tataryn instructs that, if the size of the estate permits and there are no circumstances negating an obligation, a testator should make some provision for adult children in a will. In the present case, the size of Betty’s estate does permit some provision for the plaintiffs, and I conclude that there are no circumstances which would negate Betty’s moral obligation to the plaintiffs. In particular, the evidence does not establish any wrongful conduct on the part of the plaintiffs, or an estrangement with Betty that would justify their complete disinheritance.
As a result the will was varied 15% to provide for our clients. This case highlights that even where there is a difficult relationship between child and parent, there are moral obligations on a will-maker to provide for his or her children in the will.
2017
- Sohal v. Singh, 2017 BCSC 734read more
Our client was awarded $252,431.79 in damages resulting from a car accident which occurred on November 26, 2011, where she sustained a fractured kneecap resulting in ongoing chronic, knee and leg pain.
In this case, Fred Sierecki and Michelle Gillespie of Mussio Goodman represented Ms. Sohal in advancing her claim at trial.
Mr. Justice Skolrood agreed that Ms. Sohal, a 53 years old widow, was entitled to a pain and suffering award of $80,000, as well as $44,000 in past wage loss from her job as a cook, and a further $75,000 for loss of future income earning capacity on the basis that she may need to retire earlier than planned due to her ongoing chronic pain.
The Court also recognized that a person is entitled to compensation for their loss of ability to maintain their household, even where family members residing with them have stepped in to assist in lieu of hired help.
The Court awarded Ms. Sohal $40,000 for a past and future loss of housekeeping capacity based on the fact that she was physically unable to maintain her home in the same fashion as before the accident in the years leading up to the trial and that she would also be limited in this regard in the future.
The Court also awarded $12,000 for other aspects of future care, including a supervised exercise program and a gym pass.
- Ackermann v Pandher, 2017 BCSC 880read more
The Court awarded our client $683,810 for injuries sustained in a 2011 motor vehicle accident, which substantially exceeded the insurance company’s final offer of $280,000 before trial.
Our client sustained a number of injuries in the accident, the most serious of which was to his right wrist, described by our orthopedic expert as “chronic and static with a very high likelihood of deteriorating over time.” This injury made it impossible to perform his job as a tile setter, and to engage in many activities that he previously enjoyed.
The insurance company argued that our client should be held 25% at fault for not wearing his seatbelt at the time of the Accident. We pointed out that our client had a legitimate medical reason for not wearing his seatbelt (a recent bladder surgery), and that, regardless, the insurance company failed to prove that his wrist injury would not have occurred had a seatbelt been worn. The Court agreed with our position.
With regards to past wage loss, we argued that our client should be awarded an amount that falls between his actual earnings before the Accident and the higher average wage for a tile setter, with which the Court agreed as follows:
[146] [T]he figure proposed by Mr. Ackermann’s counsel — the mid-point between average tile setter earnings and the actual earnings as I have found them — fairly reflects the rate increases that the business would certainly have commanded in the years since the accident (and which Andreas now enjoys in his own business) without indulging in speculation about business growth.
Our client was also awarded $385,000 for future loss of earning capacity after we successfully argued that our client had planned to work well into his 70s and had significant language barriers that likely precluded him from alternative employment. The Court agreed as follows:
[160] I conclude that the possibility of Mr. Ackermann obtaining paid employment in the future is so low that his remaining earning capacity must be considered minor at best. If he does become employed I predict that at best he is looking at entry-level service-type jobs, with virtually no possibility of replacing his pre-accident income.
- Raptis v. Chalabiani, 2017 BCSC 1548read more
The Court awarded the Plaintiff $584,560 for injuries sustained in a December 2009 motor vehicle accident, which substantially exceeded ICBC’s final offer of $364,243 before trial.
The Plaintiff sustained a number of injuries in the accident, the most serious of which was to her left hip, which required surgery. This injury made it difficult to perform her job as an elementary school teacher, and to engage in many activities that he previously enjoyed, such as running.
ICBC argued that the Plaintiff’s damages should be minimal, stemming from the fact that there was minimal damage to her car. The Court ultimately disagreed with this argument after listening to several medical experts retained by the Plaintiff testify that minimal vehicle damage does not equate with minimal physical injury.
ICBC also argued that the Plaintiff should not be awarded any past wage loss because she simply chose to work half-time due to her two young children, one of whom was diagnosed with Autism shortly after the accident. ICBC also argued that the Plaintiff shouldn’t have undergone the hip surgery which her surgeon felt could help reduce some of her pain. In awarding $125,000 for past wage loss, the Court held that:
[175] In my view, it was reasonable for the plaintiff to seek the support of her physicians to work on a part-time basis following her second pregnancy in circumstances where she had struggled working full time and she was scheduled to have surgery on her hip — which ultimately occurred in January of 2015. I note that Dr. Sam expressly supported the plaintiff working on a 50% basis.
ICBC argued that the Plaintiff should not be awarded any loss of future income because she was attending a CrossFit gym which they argued was evidence of a lack of physical impairment. The Court agreed with Mr. Sierecki’s submissions that there was a real and substantial possibility of future income loss and awarded $295,000 on the basis that she would likely only be able to work 4 days per week instead of full-time in the years ahead. The Judge stated as follows:
[182] In this case, I find that the plaintiff has established that her earning capacity has been impaired and that there is a real and substantial possibility that the diminishment in earning capacity will result in a loss of income. I do not agree that the plaintiff’s limitations can fairly be described as causing her mere “discomfort”. I conclude that the evidence supports her continuing to have functional limitations affecting the performance of her teaching duties on a daily basis, such as her ability to perform tasks associated with sustained or repetitive postures. As noted above, the evidence of Dr. Masri and Dr. Gilbart was that her chronic pain in her hip and lower back will likely continue and the evidence of Dr. Lamba was that her pain has an emotional component which affects how she deals with stressors. While she has been able to make a number of work modifications, they do not wholly alleviate her limitations.
2016
- Watson v. Waldron et alread more
After a two week trial conducted by our lawyers Jeff Locke and Michelle Gillespie in the Supreme Court of British Columbia, the jury awarded our client $216,500 for pain and suffering, lost wages, and medical expenses.
This jury award comes after ICBC refused to settle for any compensation whatsoever for the injuries that our client, Dainya Watson, sustained in an accident on January 11 2013. On that day, Ms. Watson was traveling on horseback along the shoulder of a road in Langley when she was struck by a driver that refused to stop after the collision. The impact caused both her and the horse to fall, causing injury to both.
ICBC’s simple argument was that, in spite of all the evidence to the contrary, our client should not be believed, and that an accident never even happened. Meanwhile, our client continues to receive multiple injections along her spine to help alleviate her pain.
Thankfully, in Ms. Watson’s case, the jury rejected ICBC’s assertion that our client should not be trusted, and compensated her for what she deserved.
- Sharma v. Sharma Estate, 2016 BCSC 1397read more
This case centered on the Estate our clients’ mother, and her Will that disinherited three children in favour of one son.
In the Will, the defendant stood to inherit the entire Estate. The Estate was valued at upwards of $2 million and consisted of real estate in Canada as well as Fiji and other sizeable investments.
At trial, we argued that the Will of the deceased did not make a morally adequate provision for our disinherited clients (Rani and Ranjan). We argued that our clients had not been given any significant assets from their mother during their lifetime, while the defendant brother (Victor) was in receipt of financial support from his mother in the form of rent-free accommodation, a monthly stipend, and payment of various expenses for the duration of his entire adult life when he was not serving time in prison for attempted murder and other serious criminal activities.
Madam Justice Griffin agreed and accordingly varied the Will ordering 34% of the residue of the Estate to the Deceased’s daughter and 33% to each son.
[430] Judging Victor by contemporary standards would mean that he should not
necessarily be disinherited simply because of his criminal activity, as he should be given a chance at rehabilitation. Similarly, the fact that there was some distance between Rani, Ranjan and the Testatrix later in her life can be understood by the circumstances which led to that distance, for which Rani and Ranjan ought not to be unduly criticized.[431] Viewed objectively in light of current societal norms, when I compare and
contrast the circumstances of Rani, Ranjan and Victor, I conclude that each sibling
is morally deserving of a share of the Testatrix’s estate and that a judicious parent
would share her estate amongst them.This case underscores the fact that there are legal and moral constraints that can affect the binding nature of one’s Last Will and Testament. If you have been disinherited and suspect that the decision was made by way of undue influence, mental incapacity, or believe there are moral reasons why you should still be entitled to a portion of an estate, contact us to review your rights.
- Ciarniello v. James, 2016 BCSC 1699read more
The case involved a BC wills variation claim by the Plaintiff, who was the second wife of a Vancouver dentist and businessman.
The Plaintiff sued her husband’s estate, claiming that he did not adequately provide for her in his will. The deceased had five children, two with the Plaintiff and three from a previous marriage. The will split the estate equally between his five children but left out the Plaintiff.
We represented the Defendants, the three children from the first family.
British Columbia Wills and Estate law is very unique when compared to other jurisdictions, as it features legislation which allows adult children or spouses to apply to the Court to vary the will of a deceased person.
A Court will overturn a will of a deceased person and vary it with terms it deems to be “just, adequate, or equitable”, if a variety of criteria are met. However, the criteria which warrants variation of a will is routinely a point of contention between the parties, especially when there are millions of dollars at stake.
The BC wills variation regime often pits family members against each other in lengthy and contested litigation. A particularly common family dynamic in BC wills variation claims involve blended families. Where the deceased has multiple children with different spouses, there is typically an increased possibility for animosity between family members. This age-old problem can lead to some fairly complex litigation.
The first family disagreed that the deceased’s will ought to be varied in the Plaintiff’s favour, mainly because their father had transferred significant assets to the Plaintiff before his death. Furthermore, they argued that their father relied on complicated tax planning reasons for leaving the Plaintiff out of his will.
Mr. Justice Sigurdson heard arguments from all the parties over four days of trial. The evidence revealed that the estate was over $11M in total, and that the Plaintiff had been transferred significant assets prior to the death of the Deceased. In spite of this, the Plaintiff argued that she should have received half of the marital assets on the death of the Deceased, as would have been required on a divorce. Furthermore, the Plaintiff argued that she had not been maintained by the deceased to continue a standard of living to which she had grown accustomed.
On the other hand, we argued on behalf of our clients that the court should give due consideration to the considerable assets already transferred to the Plaintiff, and the taxes paid by the estate for which the Plaintiff was not responsible.
Of importance, it was revealed through the course of litigation that a company transferred to the Plaintiff before the death of the deceased owed debts of close to $1.5M dollars to the deceased’s estate. This key evidence was uncovered through the discovery process of the litigation by the efforts of the Mussio Goodman team.
After reviewing all the evidence, Mr. Justice Sigurdson ordered that the will be varied so that the Plaintiff is entitled to 25% of the Estate. In making his decision, Mr. Justice Sigurdson placed a great deal of weight on the fact that without a variation of the will, the Plaintiff would be unable to re-pay the debt to the Estate. So while the Plaintiff will receive an increased share from the estate, the practical consequence is that the she must use her increased share to satisfy the debt owing to the estate.
2015
- George v. Doe, 2015 BCSC 442read more
After ICBC refused to settle our client’s claim at any number, we proceeded to trial in the Supreme Court of British Columbia and obtained an award of $98,700 for pain and suffering, wage loss, and medical expenses.
In June 2009, our client was violently t-boned by an unknown vehicle that fled the scene. Our client was unable to note the license plate of the hit-and-run driver.
Despite suffering numerous injuries, missing work, and incurring significant medical expenses as a result of the accident, ICBC refused to offer any money for compensation.
Under the law, an injured claimant is still entitled to up to $200,000 in compensation from ICBC even though the identity of the hit-and-run driver is never found. However, the law first requires claimants to make “all reasonable efforts” to determine the identity of the hit-and-run driver. This requirement was discussed in one of our previous posts, “Hit and Run Accidents: What you Need to Know.”
In our case, ICBC relied on this technicality in attempt to deny our client any compensation.
After our client’s accident, he was in shock, his airbags had deployed in his face, it was dark out, and the at-fault motorist fled the scene almost immediately. He then relied on his passenger (who had an injury claim of his own) as well as his lawyer to post “Witness needed” signs near the accident scene, follow up with the police, and put an ad on Craigslist.
ICBC argued that because the client didn’t personally take these steps, he should be denied any compensation for his injuries.
After seven days of trial, Madam Justice Baker of the Supreme Court of British concluded that our client was entitled to rely on the efforts made by his passenger and his lawyer to ascertain the identity of the unknown driver:
I am not persuaded [by ICBC], however, that a party may not rely on the actions taken by an agent or agents in order to comply with the statutory obligation. In many circumstances, the claimant may be unable to personally take steps – because he or she has suffered a significant injury, for example, or is hospitalized following the accident.
Where there are a number of parties involved in an accident, each of whom is advancing a claim for damages, as in this case, it makes little sense to require that each of them personally post signs at the accident scene or post advertisements.
Madam Justice Baker went on to award significant damages to our client, as well as costs of the litigation.
- Han v. Park, 2015 BCCA 324read more
In 1999, our client was involved in an car accident which caused significant injuries and substantial wage loss over the following years.
Prior to hiring our firm, she was represented by another lawyer during her initial trial in 2013. Unfortunately, and in part to several strategic and legal mistakes, our client was awarded only a fraction of what she sought, and what her claim is actually worth.
Understandably, our client sought to challenge what she believed was a miscarriage of justice. We agreed to help and successfully appealed the jury’s decision to the BC Court of Appeal on several grounds.
The Court of Appeal agreed that the trial judge was in error by allowing the jury to read several documents that were largely irrelevant to her case and only served to prejudice our client. It is not unusual for an ICBC defense lawyer to attempt such tactics, but unfortunately our client’s previous lawyer did not raise any objections.
However, we argued and the Court agreed that the trial judge should have properly exercised her function as a gatekeeper and prohibited such inflammatory evidence from being viewed by the jury. The Honourable Madam Justice Stromberg-Stein, writing for the unanimous three-judge panel, ruled as follows:
[34] …The inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.
[35] The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.
[36] In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.
[37] On this ground alone, it is in the interests of justice to order a new trial.
2014
- Niedermeyer v Charlton, 2014 BCCA 165 read more
In this Court of Appeal case, our client and her students were returning by bus from a zip line activity in Whistler when the bus veered off the road, overturned, and fell off a cliff resulting in multiple injuries to our client including a broken neck.
Prior to the accident, our client signed a “Release” issued by the zipline operator, Ziptrek Ecotours, which also operated the bus involved in the accident.
In the summary trial, ICBC successfully argued on behalf of the insured defendants that the Ziptrek Release signed by our client effectively barred her from suing for negligence causing the bus accident, and therefore prevented her from accessing compensation through ICBC under Part 6 of the Insurance (Vehicle) Act.
At the Court of Appeal, we argued on behalf of our client that the Ziptrek Release was signed only in contemplation of accidents that may occur on or around the zipline itself, and was not meant to release liability for a motor vehicle accident.
It was also argued that purpose of the Insurance (Vehicle) Act should not allow private parties to contract out of the ICBC insurance regime. To do so would undermine the universal compulsory insurance coverage that the legislation envisioned, and is contrary to public policy.
In writing for the majority, the Honorable Madam Justice Garson agreed with our submissions.
- ICBC v Stainton Ventures, 2014 BCCA 296read more
In this Court of Appeal case, ICBC lost for the second time in trying to convince our Court that the website belonging to Wes Mussio’s wife (icbcadvice.com) was infringing on ICBC’s trademark.
In 2012, the BC Supreme Court ruled in favour of Mussio; however, ICBC appealed the decision to the BC Court of Appeal.
ICBC’s primary argument was that the use of “ICBC” in a website domain name by a personal injury lawyer was misleading and in breach of ICBC’s intellectual property rights.
In particular, ICBC argued that the average consumer would likely believe that ICBC itself was offering advice on its business, rather than an independent entity.
The BC Court of Appeal disagreed and dismissed the appeal. The Court refused to accept ICBC’s argument that the average Internet user isn’t savvy enough to figure out that the website clearly isn’t operated by ICBC, and therefore the trademark was not infringed.
- Beggs v. Stone, 2014 Vancouver Registry M104775read more
In this seven day trial, our client was a 57-year-old apartment manager who suffered ongoing neck, back, knee, and psychological injuries following a motor vehicle accident in August 2009. The accident also rendered her disabled from work indefinitely.
The plaintiff had a number of significant pre-existing health problems, including episodes of depression, panic attacks, respiratory difficulties, high blood pressure, low back pain and injuries suffered in previous motor vehicle accidents. The court found that these pre-existing problems rendered the plaintiff vulnerable to injury and opined that she was a “classic thin skull”.
ICBC offered to settle before trial for $83,000. After trial, our client was awarded $333,000 which included $80,000 for non-pecuniary damages, $128,000 for past wage loss, and $125,000 for future wage loss. ICBC also agreed to pay $7,000 of our client’s special damages, bringing the total award to $340,000.
- K v. Co-operators Life Insurance Comapny, 2014 BCSC 2246read more
We filed a lawsuit on behalf of our client because his disability benefits had been unduly terminated. In order to prove his claim, we retained the services of a doctor who is an expert in the field of chronic pain. This doctor also has a broad range of expertise, including neurology.
Additionally, we relied on our client’s family doctor in support of his ongoing disability.
In response to these opinions, the insurance company attempted to disprove the claim using four expert reports; they sought one report from a psychiatrist, one from a vocational specialist, and one from an occupational physician. Then, they tried to obtain an additional report from a neurologist, claiming that our chronic pain expert was essentially a neurologist as well.
The insurance company therefore argued that they needed a neurology report to defend the claim. This was notwithstanding the fact that the insurance company had already sent our client to a neurologist in 2002 who wholeheartedly supported his disability. Notably, they wanted an updated report with a different neurologist, even though there had been no evidence of any neurological change since the 2002 report.
We opposed this IME on the basis that it would make the trial unfair. The law is clear that the parties must be on equal footing with regard to the expert evidence. The Master in Chambers ultimately agreed with our argument, the reasons for which were published in in Korpa v. Co-Operators Life Insurance Company 2014 BCSC 2246:
[26] The issue in this case is whether, in all the circumstances, there is a need to put the parties on an equal footing with respect to the medical evidence or, as it has sometimes been described, to balance the playing field.
[27] I have concluded that, for the following reasons, Mr. K. should not be required to attend an IME with Dr. Dost…
[36] In all these circumstances, I am not satisfied that the defence has shown the need for examination by a neurologist to balance the playing field.
2013
- Kuma-Mintah v Delange, 2013 BCSC 1094read more
Our client was involved in a motor vehicle accident resulting in head and soft tissue injuries. Liability was the only issue at trial, as both parties claimed it was the other driver who ran the red light and caused the collision.
Evidence provided by a city engineer regarding the traffic light sequence indicated that it was the defendant who likely ran the red. After the three day trial, the judge found that the defendant was solely at fault for the accident.
- Laszlo v Lawton, 2013 BCSC 305read more
This estate litigation action was brought by our clients, the relatives of the deceased, who sought to invalidate her last will and testament. The deceased had drastically altered her last will to leave out all surviving relatives in favour of a religious institution to which she had no affiliation.
During a ten day trial, we successfully argued that when the deceased executed her final under suspicious circumstances which included mental decline.
In finding for our clients, the Court invalidated the contested will, thereby reinstating the previous will which named them as beneficiaries of a 1.8 million dollar estate.
- Lees v Compton, 2013 BCSC 1015read more
In this five day trial, our client was a 25 year old student who suffered ongoing neck, back, and shoulder injuries following a motor vehicle accident.
Prior to the accident, she was extremely active and participated in a variety of sports including snowboarding and competitive field hockey. The injuries from the accident had a significant impact on her ability to participate in these activities.
ICBC offered to settle for $57,000 before trial. The judge awarded $115,834.31, which included $45,000 for pain and suffering and $50,000 for loss of future earning capacity.
- Heyman v South Coast BC Transport Authority, 2013 BCSC 1724read more
Our client’s ankle was run over while attempting to flag down a bus.
The bus driver admitted to seeing our client before pulling away from the curb, but stated that strict company policy predicated that he drive once the doors were closed.
After a two day liability trial, the Court rejected the bus company policy and found that the bus driver partly negligent for failing to take any precaution to avoid striking our client.
- Quillen v Linnea, WCAT-2013-03400read more
Our client was worked construction for the Defendant who was also an old friend. He met the Defendant outside his home so they could travel to the jobsite together in one truck. As he was transferring his personal belongings into the Defendant’s truck, he was run over by the vehicle.
ICBC argued that the injury claim should be pursued through Worksafe since both parties were working at the time of theaccident. ICBC argued that the Defendant’s vehicle was akin to a “crew bus”, and that that the ICBC claim should therefore be dismissed. We argued that the parties did not begin to work until they reached the jobsite, and that the accident happened during a carpooling arrangement among friends who happened to work together.
WCAT agreed with our submissions and disregarded ICBC’s arguments. With this result, our client was able to pursue his ICBC claim for pain and suffering, lost wages, and out-of-pocket expenses resulting from severe orthopaedic injuries he sustained in the accident.
- Yushchenko v Costa, WCAT-2013-02339read more
Our client drove from his office to meet his mother for lunch. The motor vehicle accident occurred on his way back to work.
ICBC argued that our client was working at the time of the accident, and the claim should therefore be pursued throughWorksafe. ICBC claimed that our client’s occupation was that of a “travelling employee”, and thus the nature of his employment required him to drive.
We argued that the lunch break was a substantial deviation from his route work-related traveling activities. WCAT accepted our argument, which allowed our client to pursue compensation for his injuries from ICBC.
- Lee v Ching, 2013 Vancouver Registry, Docket M123846read more
In this Chambers Hearing, our client was involved in two motor vehicle accidents and sought compensation from ICBC for his injuries. As is their legal right, ICBC had our client assessed by an orthopaedic surgeon, Dr. Yu. They did so pursuant to a claim for Part VII, or no-fault accident benefits, whereby a claimant can receive minimal reimbursement for expenses related to a claim regardless of fault.
ICBC then sought to have our client attend another independent medical examination by another orthopaedic surgeon, Dr.Sovio. When we refused, ICBC sought a court order, arguing that the first examination was for the “Part VII” claim whereas a second examination by an orthopaedic surgeon would be for the “tort” claim.
Master Baker dismissed ICBC’s application with costs, stating that Dr. Yu’s report was comprehensive enough to address the medical issues relevant in the law suit, and that a subsequent examination was not necessary to establish equality between the parties. Further, he stated that ICBC’s tactics resembled essentially a “belt and suspenders” approach designed to give ICBC at an unfair advantage.
- Poitras v Akester, 2013 Vancouver Registry M102705read more
In this two week jury trial, the primary issue was “causation”. Our client was rear-ended at a red light in New Westminster. ICBC deemed the impact “low velocity” due to the minimal damage to our client’s vehicle, the repairs for which were estimated at $400.
In the years leading up to the accident, our client was diagnosed with severe spondylosis, otherwise known as degenerative disc disease of the cervical spine. However, our client suffered minimal pain and neurological symptoms from her condition prior to the collision.
After the accident however, our client suffered a severe escalation in her symptoms, and eventually underwent an invasive surgical procedure called a decompression laminectomy of the cervical spine.
There were two competing arguments in this case. Ours relied on the “thin skull” principle, which essentially means “you take your victim as you find them”. We argued that our client was in a fragile state at the time of the accident; she was predisposed to a significant injury due to her pre-existing condition. While a healthy 18 year old could have very well walked away from the impact unscathed, in our client’s case, the collision was the tipping point that resulted in surgery and her ongoing disability.
ICBC, on the other hand, relied on the “crumbling skull” principle. The health of our client, they argued, was on a trajectory of decline prior to the accident, and it was only a matter of time before she needed the surgery in any event.
ICBC therefore argued that they should not be held responsible for our client’s pain and suffering, wage loss and treatment expenses since she was going to end up in the same disabled state regardless of the accident.
The trial involved twenty expert reports and almost two dozen witnesses, including several neurologists, neurosurgeons and orthopaedic surgeons.
In the end, if the final award is any indication, the jury appeared to favour the evidence of our client, as well as that of the medical specialists testifying on her behalf. They awarded our client $290,400.
2012
- Sun v Sukhan et al, 2012 BCSC 365read more
In this one day trial, our client was a 31 year old IT specialist who was rear-ended while driving on Halloween.
He suffered lower back and neck injuries as a result of the accident which prevented him from working for a short time and caused pain and suffering for well over a year after the accident.
In taking the evidence as a whole, the judge assessed total damages at $25,733.82.
- Everett v Solvason, 2012 BCSC 140read more
Our client was involved in a rear-end collision. Of significance in this action was the fact that our client had been involved in a motor vehicle accident the previous year and had also suffered a sports-related injury in close proximity to the accident.
ICBC argued that our client’s injuries were attributable solely to the prior accident and his sporting activities.
After a three day trial, the Court accepted that our client’s symptoms were in fact largely the result of the rear-end collision awarded $26,774.13.
- Terry Robinson v. David Noyes et al, WCAT-2012-01880.read more
Our client left his office on his lunch break to meet a childhood friend for lunch. The car accident occurred en route. Generally, an employee on a lunch break is not considered to be “working”.
However, Mr. Robinson’s friend was also a client and ICBC argued that the lunch was actually a client meeting, thereby attempting to extinguish ICBC coverage. We argued that the predominant purpose of the lunch was personal or social rather than a product of any business relationship.
WCAT agreed with our submissions, and our client was therefore entitled to pursue his injury claim against ICBC.
- Wahl v Sidhu, 2012 BCCA 111read more
Although the judge in the previous decision ruled in our client’s favour and awarded a significant amount for his pain and suffering, past wage loss, and future care, it was decided to forego an award for compensation beyond June 2009.
We successfully argued for our client’s claim of wage loss beyond June 2009 and won the appeal.
2011
- Bradshaw v Matwick, 2011 BCCA 111read more
Our client suffered several injuries including a tear in his left knee medial meniscus in a motor vehicle accident.
In 2009, the Court awarded $268,389, and ICBC appealed the decision. In particular, they argued that the knee injury and lost income was due to reasons that were unrelated to the accident.
We successfully defended our client’s claim and the original award was upheld.
- Varesi v Cadelina, 2011 BCSC 284read more
Our client suffered soft tissue injuries following a motor vehicle accident. Prior to retaining our services, she attempted to negotiate a settlement with ICBC by herself, but failed to reach an agreement over damages for pain and suffering and accident related costs.
However, ICBC claimed that an agreement had in fact been reached and sought a declaration from the Court that the action had been settled.
In dismissing ICBC’s argument, the Court found that there had been no “meeting of the minds” with regard to our client’s previous negotiations and awarded costs against ICBC.
- James v Gillis, 2011 BCSC 826read more
In this Family Compensation Act claim, our clients were the surviving partner and parents of a 36 year old mother of three who was killed in a tragic motor vehicle accident. During a four day trial, the main issues involved whether the Deceased’s common-law partner was entitled to compensation under the Act, as well as an assessment of damages for both him and the Deceased’s parents.
The judge determined that our client was in fact the Deceased’s common-law partner at the time of death and therefore was entitled to compensation under the Act. He was awarded over $75,000 in compensation for loss of past and future financial support and household services, as well as compensation for loss of inheritance.
The parents of the Deceased were awarded $20,000 for economic loss and loss of guidance as a result of the untimely death of their daughter.
- T.L.S. v ICBC, 2011 UMP Arbitrationread more
Our client was a 70 year old lawyer who suffered a mild traumatic brain injury in a motor vehicle accident which affected his ability to practice law. Specifically, he suffered a cognitiveimpairment whereby his capacity to function and communicate at a high level was diminished.
During a 14 day Arbitration hearing, numerous experts were brought forward to present evidence. Additionally, our client’s wife, son, and several “lay witnesses” were called to submit evidence as to his cognitive injuries.
In finding for our client, the Arbitrator awarded $65,000 in pain and suffering as well as $203,334 in wage loss caused by the accident.
- Gowler v Ngo, 2011 BCSC 1428read more
Our client was a 50 year old computer technician who suffered cognitive issues following two motor vehicle accidents, and in particular problems with memory, concentration, and performing multiple tasks. These injuries had a serious impact on his ability to work.
In this 13 day jury trial, numerousspecialist experts were called to present evidence as to our client’s cognitive impairment following the accident.
In accepting the evidence put forward by our experts, the jury awarded our client $125,000 plus costs.
- Soczynski v Cai, 2011 BCSC 1299 read more
Our client had been injured in a motor vehicle accident and was required by ICBC to attend an independent medical examination with an orthopaedic surgeon, Dr. Bishop, for the purposes of Part 7 (No Fault) benefits.
Later in the claim, ICBC scheduled our client to attend yet another independent medical examination with orthopaedic surgeon, Dr. Horlick. We refused and ICBC sought a Court Order compelling our client to attend.
We argued that ICBC would have an unfair advantage if they were allowed two orthopaedic expert reports. The Court agreed and declined to make the order.
2010
- Mills v Seifried, 2010 BCCA 404read more
ICBC appealed the lower court’s decision to the Court of Appeal of British Columbia. Here, the Court reviewed the previous decision made by the BC Supreme Court and agreed with our submissions that there was no reason to interfere with the previous judge’s findings.
Thus, the appeal was dismissed and the favourable decision to our clients was upheld.
- Lee v Mclean, 2010 BCSC 734read more
Our client was an electrical engineer and computer software designer who had been involved in two motor vehicle accidents in 2003. He had been involved in three previous motor vehicle accidents in the 1990s which had left some lingering effects by 2003.
The trial took place over six days, during which a considerable amount of time was spent determining the extent of ourclient’s pre-accident symptoms.
In accepting that our client suffered significant injuries that were distinct from those sustained in the 1990s, the Court awarded $344,566 in total damages, including $63,750 for pain and suffering and over $250,000 for past and future wage loss.
- Freidooni v Freidooni, 2010 BCSC 553read more
In this one day Chambers Hearing our client was a mother of three who was a passenger in a vehicle driven by her husband which struck a deer on a highway. She suffered various injuries as a result of the collision.
The husband was driving on “cruise control”, drinking coffee, and listening to music at the time of the accident. He did not see the deer before the collision and did not attempt to apply the brakes before the impact.
The Court determined liability against the husband, which then allowed our client to receive compensation from ICBC.
- Wahl v Sidhu, 2010 BCSC 1466read more
In this ten day trial, our client suffered soft-tissue and psychological injuries following a 2006 motor vehicle accident.
In deciding for our client, the Court assessed total damages at $165,233.27 which included $65,000 for pain and suffering, $78,000 for past wage loss, and $10,000 for future care. However, the trial judge cut off compensation at June 2009. We therefore appealed the decision and won.
2009
- Mills v Seifried, 2009 BCSC 447read more
In this Family Compensation Act Claim, our clients were the surviving family of the victim of a fatal motorcycle crash.
During a five day trial, the sole issue involved liability and in particular, the apportionment of fault to the respective parties. It was established by our expert engineer that even though the motorcyclist was travelling at an excessive rate of speed, there was enough time for the left-turning driver of the dump truck to have seen the motorcycle before the truck crossed the double yellow line into oncoming traffic.
Therefore, the court found the conduct of the other driver more blameworthy than the motorcyclist and apportioned liability in favour of our client.
- Forstved v Penner, 2009 Vancouver Registry Docket M073335read more
In this seven day jury day trial, our client was a 47 year old mother and day care operator who sustained neck, shoulder, and back injuries after she was rear-ended by a Ford Explorer. She also suffered from headaches and experienced psychological issues after theaccident.
After careful examination of the evidence provided at trial, including various expert reports, the jury concluded that our client was entitled to $200,200 in total damages. This included $75,000 for pain and suffering, $36,000 in past wage loss, and $68,000 in loss of future earning capacity.
- Dalziel v Appleby, 2009 Vernon Registry Docket 37261read more
Our client was a 46 year old horse breeder who suffered soft tissue injuries following a rear-end collision. She had been involved in two previous motor vehicle accidents in the 1990s, resulting in health issues including chronic fibromyalgia, chronic fatigue, and chronic depression. Leading up to the subject accident, she had ceased all employment activities other than those related to the horse industry.
Although our client had health problems leading up to the accident, she was capable of functioning and running her horse-farming operations with minimal assistance. After the accident, she was unable to care for her horses, the farm, or her home. She became easily exhausted and had issues with dizziness.
In recognition of the loss caused by the accident, the Court awarded a total of $177,030 in damages. This included $90,000 for pain and suffering, $20,000 for past wage loss, $30,000 for loss of earning capacity, and $20,000 for future cost of care.
- D. v Briggs, 2009 BCSC 914read more
Our client was a self-employed mother of two who was involved in two motor vehicle. At issue were the extent of her injuries and an assessment of the damages she was entitled to.
Throughout the four day trial, we presented evidence which showed our client had developed chronic myofascial pain syndrome as a result of the accident. Her family doctor as well as a pain management specialist were called as expert witnesses in support of her claim.
The Court accepted our evidence and was awarded our client a total of $144,461 which included $50,000 for pain and suffering, $50,000 for past wage loss, and $40,000 for loss of capacity.
2008
- Buksh v Miles, 2008 BCCA 318read more
Our clients were a husband and wife who had sustained injuries in a motor vehicle accident in 2002. The injuries prevented Mrs. Buksh from working as a hairdresser. Unfortunately, our client’s claim was dismissed by the jury.
We appealed the decision and argued that the trial judge made errors which resulted in our clients not receiving a fair trial. We further argued that the jury verdict was perverse and contrary to uncontroverted evidence that they suffered injury in the accident.
In accepting our arguments, the Court of Appeal set aside the previous decision on the basis of procedural unfairness, and ordered a new trial.
2007
- Chow v Butters, 2007 Vancouver Registry Docket M015269read more
In this one day liability trial, our client suffered injuries in a motor vehicle accident in Richmond. She was attempting to turn left off of Bridgeport road onto Garden City Way. She had waited until the light turned yellow then began to make her turn.
The other driver was travelling in the opposite direction on Bridgeport Road. When he came to the intersection at the yellow light he decided to accelerate instead of yielding to our client. We established that the Defendant had been travelling 10km/hour over the speed limit, and since it was wet and slippery conditions at the time, the judge agreed that he was going much too fast in the circumstances.
Therefore, the Court found the other driver to be 100 percent responsible for the accident.
- J.W. v Morin, 2007 BCSC 1329read more
Our client was a paralegal in a crosswalk with her common law spouse when a vehicle threatened to hit them. Thinking quickly, her partner selflessly pushed her out of the way and took the brunt of the impact by the vehicle. Unfortunately, our client still suffered injuries as a result of the push, which the the defendant driver was ultimately responsible for.
The exact clinical diagnosis of our client’s pain symptoms was unclear, whether it was chronic pain syndrome or fibromyalgia. However, based on the evidence, the judge agreed that our client was experiencing significant pain symptoms which she would not have experienced but for the accident. Therefore, after a four day trial the Court awarded over $140,000 which included $80,000 for pain and suffering, $15,000 for lost income, and $40,000 for loss of income earning capacity.
2005
- Bjornson v Macdonald, 2005 BCSC 765read more
In this five day Family Compensation Act trial, our clients were the surviving family members of the victims of a fatal motor vehicle accident which occurred at Lac La Hache, BC. The only issues at trial were the claims for damages for loss of love, guidance and affection, loss of financial support and services, and for special damages.
One clients included a single mother who lived in Alberta on an acreage with her three children. Before her parents were killed in the accident, they were planning on relocating to Alberta to help our client with the education and rearing of her children. Our client was greatly reliant upon her parents for emotional and financial support and assistance with her children.
In finding for our client, the Court awarded over $130,000 in total damages, which included $50,000 for loss of child care and household services, $60,000 for loss of financial support, and $15,000 for loss of love, guidance and affection.
2004
- O. v P. et al, 2004 BCSC 1633read more
Our client was involved in two motor vehicle accidents within the span of a week when he was 16 years old. He suffered from ongoing physical and psychosocial issues as a result. At the time of the trial, he was a member of the RCMP after recently passing the required examinations. However, he did so while having to deal with considerable hardship and struggle with regard to his accident related symptoms.
The issues at trial involved the nature and extent of the injuries he suffered as well an assessment of damages. ICBC argued our client had a poor academic record prior to the accident and therefore any psychological or cognitive struggles were pre-existing. This argument ultimately failed due to the medical evidence supporting identifiable injuries and resulting psychological changes due to the accident.
In accepting our submissions, the judge awarded $83,623.90 in total damages which included $60,000 for pain and suffering and $15,000 in past income loss.
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