Court Sides with Mussio Goodman for Injury Analysis

Sometimes moderate or severe injuries can result from a relatively minor collision. In these cases, ICBC typically takes a hard line approach, arguing “common sense” dictates that a minor collision cannot result in anything but a minor injury. Unfortunately for ICBC, the laws of British Columbia and the laws of physics state otherwise.

Vehicle manufacturers design modern cars to crumple on impact. They do this in order to absorb the force that is being transferred from one body to another. Therefore, if there is more damage on impact, less force is being transferred to an occupant and more to the vehicle. However, if there is little damage to a vehicle, it does not necessarily mean that the impact was insignificant. A possible explanation is that the force from the impact was transferred elsewhere (i.e. to the occupants of a vehicle).

In Dunne v. Sharma, our court recently confirmed that there is no presumption in law that low velocity impact collisions cannot cause significant injury to a claimant. In Dunne, ICBC tried to use the “common sense” approach that a minor accident cannot cause a moderate to severe injury. The Court rejected ICBC’s argument as follows:

[90]         Dealing first with the low velocity and minimal material damage aspect, I note that the defendants have tendered a report prepared by an engineer with expertise in the field of accident reconstruction. The essence of his opinion is that in each of the subject collisions, the velocity change experience by the plaintiff’s vehicle was probably less than about 12 km. per hour. The photographs contained in his report also demonstrate that the damage done to the cars by the collision was quite modest.

[91]         I appreciate that to have to been the case and I accept that common sense might generally dictate that a minor collision would not be expected to result in significant injuries. However, there is simply no basis upon which I am able to extrapolate the information concerning the velocity of the collision to a conclusion that the plaintiff’s injuries must therefore necessarily be of a certain type and degree. As has been judicially observed in a multitude of cases, the court cannot conclude that because the impact of the collision was relatively minor, then any resulting injuries must necessarily be minor as well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, 38 A.C.W.S. (3d) 924 (S.C.):

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

Court Confirm That Bikes Can Be At Fault For Accidents, Like Cars

Looking around the city during our recent spate of sunny weather, it is nice to see the numerous bike lanes in Vancouver being put to some use. The City of Vancouver installed these bike lanes to protect cyclists against accidents, so they should take advantage of them and ride in the designated areas whenever possible.

Of course, there are times when a cyclist must share the road with motor vehicles as well. In these cases, many believe that cyclists should not be held to the same standard of care as motor vehicle drivers, because it is the latter group who are more vulnerable.

However, the law holds a different view.

The case of Miles v Kumar 2013 BCSC 1688 provides a good example of how cyclists are held to the same standard of care on the road. The Plaintiff was cycling on Grandview Highway when he made a lane change in front of a vehicle driven by the Defendant. The lane change was careless, despite the fact that the Plaintiff was on a bicycle and the Defendant was in a car. Mr. Justice Bernard made the following conclusions:

[62] In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.

[63] In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

The bottom line is that a careless lane change is a careless lane change, whether you are operating a bicycle or a motor vehicle. This is true for any other rule of the road. Needless to say, the cyclist will suffer the brunt of any collision with a car, regardless of fault. However, the law does not discriminate; even if a bicyclist is seriously injured in an accident that was their fault, they will have no legal recourse.

For this reason, cyclists need to be remain particularly vigilant of their surroundings on public roads.

Specific safety tips and regulations for cyclists can be found here.

What You Need to Know About Interest on Disbursement on ICBC Claim Cases

In order to fight for your right to compensation with ICBC, lawyers must spend money on a variety of necessary services such as investigation, doctor’s reports, photocopies and court fees. These expenses are known as disbursements.

When you hire a lawyer for your ICBC car accident, you are typically charged an interest rate on these disbursements. This is to facilitate financing your case, as most law firms require a loan or a line of credit from a lending institution to operate their business.

Normally, ICBC will be forced to pay the interest charge because it is associated with the the advancement of a claimant’s case. However, many lawyers charge very high interest rates (ie. over 10-15% per year. As a result, ICBC will resist paying those charges when the case is concluded).

In the recent case of Phippen v. Hampton, the claimant was injured in a car accident and retained a law firm. Upon signing the fee agreement, she agreed to pay 15% on disbursements since the lawyer was using a financial lender to finance the personal injury claim. When the lawyer tried to get ICBC to pay for the interest charges, ICBC refused. The Supreme Court of British Columbia determined that 15% was unreasonable in the circumstances and substituted a lower rate.

In essence, the court confirmed that ICBC is not forced to pay interest that is too high, but only reasonable interest on disbursements. In practice, a reasonable rate is usually between 6-8%.

The decision is good news for all claimants. It confirms that the interest on disbursements must be paid for by ICBC, and sets a key precedent as to what is a reasonable rate. Lawyers that attempt to charge over 8% will likely be confronted with ICBC’s refusal to pay those charges when the claim is finished.

The end result is that the claimant may be stuck with paying the remainder of any interest that Court has deemed unreasonable. This seemingly small amount can add up, especially for cases of a lengthy duration.

A few percentage points of interest on disbursements can mean a client is left with a lower settlement at the end of the claim. Therefore, it is important to pay attention to interest charges on disbursements when you are thinking of hiring a lawyer.

ICBC Hired Doctor Biased Against Client Says Judge

Expert witnesses, such as doctors, who come to court to testify, do so in order to give evidence and opinion on complicated matters outside of the realm of the general knowledge of judges and juries.

The “Rules of Court” require that these witnesses give such evidence in a fair and balanced way and not advocate for either party, even if the expert was hired by one party to come to court on that party’s behalf.

In the recent case of Mattice v. Kirby, the Court found that a doctor retained by ICBC to give expert evidence crossed the line from expert to advocate.

In short, the doctor completed a cursory examination of the plaintiff and concluded he was not seriously injured and would likely recover with time. When ruling on the doctor’s expert evidence, the Court was quite critical:

[75] Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.

[76] During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.

[77] Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so.

[82] In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.

[83] In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.

This case underscores the importance of remaining vigilant about the doctors ICBC often attempts to assign to our clients. We strive to oppose examinations involving doctors with a history of bias, and should a claim proceed to trial, we ensure that their bias is properly brought to the Court’s attention.