Mussio Law: Court Awards Client 100% Liability Decision Against ICBC

Posted on by Mussio Goodman

We are pleased to announce that, after a three-day trial in the Supreme Court of British Columbia, the Defendant was found to be 100% responsible for the car accident that caused significant injuries to our client.

The case was initially characterized as a “he said/she said” dispute about which driver ran the red light and caused the collision.

Our client was traveling westbound on Lougheed Highway at 2 a.m. He claimed to have been approaching a green light at the United Boulevard intersection when the Defendant suddenly ran the red light governing United Boulevard and entered the intersection directly in front of him.

The Defendant, on the other hand, was traveling southbound on United Boulevard and claimed that her light had changed green before she entered the intersection. She therefore claimed that our client must have proceeded through his light after it had turned red.

Since both lights could not have been green at the same time, one of the drivers was either mistaken or not telling the truth.

Prior to trial, ICBC offered to settle the case for 1% liability against the Defendant, and 99% liability against our client. This would mean that ICBC would pay “one cent on the dollar” for his injuries, wage loss and treatment. This offer was rejected.

Over the course of the litigation, we retained an engineer to provide an Accident Reconstruction Report. At trial, we also tendered a Traffic Signal Sequence Report and called a traffic engineer to explain its results to the Court.

The evidence showed that, provided there were no other cars in the immediate vicinity, the light governing the defendant’s left turn would have changed from red to green in 11.3 seconds after she arrived at the intersection.

These details were important because, in 2011, Eric Goodman conducted an Examination for Discovery of the Defendant, during which she testified under oath that, when she approached the red light at the intersection, the roads were completely empty except for our client’s westbound vehicle in the distance. She further testified that she waited 30 seconds for her light to turn from red to green.

The engineering evidence therefore clearly disproved the Defendant’s claim that she was waiting at the light for 30 seconds. This called the credibility of her entire account into question.

At trial, the Defendant attempted to distance herself from her prior testimony, but the Court refused to accept the change in her story:

[20] … Ms. Delange sought to move away from her wait-time estimate of 30 seconds that she gave at her examination for discovery. Her discovery evidence was very clear on the point. She also suggested the possibility that other vehicles were present at or near the Intersection.

…[H]er attempt to explain away her very clear discovery evidence was indicative of her ongoing struggle to comprehend how the accident could have occurred.

[21] I reject the able submissions made by her counsel that her discovery evidence was sufficiently unclear to create ambiguity. Counsel conducting the discovery ensured that Ms. Delange had full opportunity to confirm her evidence on key points. Her evidence on many foundational factual issues, including her wait time, the manner in which she proceeded into the Intersection, and the lack of any other vehicles, was reviewed to ensure clear and accurate responses. I am not left in any doubt about the clarity of her evidence at discovery. I found that her attempts in cross-examination to explain away inconsistencies between her trial evidence and discovery evidence lacked credibility…

[25] The description of the accident provided by Mr. Kuma-Mintah is also supported by the expert accident reconstruction evidence tendered as part of his case…

[27] … I accept his counsel’s submission that Mr. Kuma-Mintah, who had attended college in the United States on a football scholarship and was waiting to try out for the B.C. Lions and other professional football teams, would not have jeopardized his career by speeding through the Intersection without regard to the traffic signals warning him to stop.

This decision underscores the importance of conducting a thorough and detailed Examination for Discovery prior to trial. While this procedure often assists in obtaining a fair settlement prior to trial, it also “sets the table” for proving the Plaintiff’s case should the matter have to proceed to Court.

It should be noted that every case is different, and that past performance is no guarantee of future results. It should also be noted that very few injury claims require a resolution in a courtroom; in the vast majority of cases, we are able to negotiate a fair settlement with ICBC on behalf of our clients. However, in the event ICBC refuses to make a reasonable offer, we are always prepared to take the case to trial.

Mussio Law: Client Awarded $115,000 At Trial After Rejecting $57,000 ICBC Offer

Posted on by Mussio Goodman

We are pleased to announce that, following a five day trial in the Supreme Court of British Columbia, our client was awarded a total of $115,834.31 plus costs and disbursements.

Our client’s injuries, initially sustained in a 2008 motor vehicle accident at the intersection of 2nd Ave and Burrard, resulted in a diagnosis of musculoligamentous soft tissue injuries at the neck and thoracic spine.

One of the issues at trial involved the claim for $10,467 representing the treatment expenses our client incurred over the course of four years.

As per the written reasons of the Court, ICBC argued as follows:

[110] The defendants submit that the plaintiff likely made a substantial recovery within a year or so of the accident and that any expenses beyond that timeframe cannot be their responsibility. Further, they submit that on the evidence the physiotherapy and massage therapy treatments after the first eight months or so were of little assistance.

ICBC further submitted that, because a significant portion of the treatment and medication expenses were reimbursed through the client’s father’s extended benefits plan, ICBC should not have to repay the funds since that would amount to a “double recovery”.

In response, we argued that the medical evidence clearly indicated that our client was nowhere near a full recovery, and that her injuries had in fact plateaued.

Furthermore, and as our expert rheumatologist confirmed on the witness stand, the physiotherapy and massage therapy treatments were, and continued to be beneficial, as they provided the temporary relief our client needed to continue with her University studies and pursue gainful employment.

We also submitted that ICBC should not be entitled to benefit from the fact that our client’s father successfully sought reimbursement through his extended medical plan. It should be assumed, we argued, that her father negotiated with his employer for that benefit plan, and presumably gave up other benefits in return. Therefore, since the benefit plan was available at a cost to our client’s father, ICBC should not be let off the hook for having to repay the full amount.

The Court agreed, awarding full reimbursement of treatment expenses, and awarding a further $10,000 for future massage therapy:

 [111] I find the plaintiff is entitled to recover the special damages amounts claimed including the full costs of the prescription medication. Such sums are recoverable pursuant to the private insurance exception to double recovery: Cunningham v. Wheeler, [1994] 1 S.C.R. 359; Napoleone v. Sharma, 2008 BCSC 1746. The massage and physiotherapy treatments were recommended by the plaintiff’s treating physician. The massage therapy provides short term relief to the plaintiff. I find those amounts are all recoverable.

It should be noted that every case is different, and that past performance is no guarantee of future results. It should also be noted that very few injury claims require a resolution in a courtroom; in the vast majority of cases, we are able to negotiate a fair settlement with ICBC on behalf of our clients. However, in the event ICBC refuses to make a reasonable offer, we are always prepared to take the case to trial.

Mussio Law Wins WCB Tribunal Decision Against ICBC

Posted on by Mussio Goodman

When an injured motorist first informs ICBC of the accident, one of the questions they may face is whether they were working at the time of the collision. This is because, if both drivers were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to any injured party, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the case in the unique scenario of Terry Robinson v. David Noyes and Price’s Trucking Ltd.

In this case, the Plaintiff left his office on his break to meet his childhood friend for lunch. The motor vehicle accident occurred en route.

Generally speaking, an injured party is not declared to be “working” pursuant to the Workers Compensation Act if the accident occurred during a lunch break. However, ICBC argued that, because the Plaintiff’s childhood friend was also a regular client, the lunch appointment should be deemed to be “client development” rather than merely a social outing. Therefore, ICBC submitted, this particular lunch break was in fact work-related, and the Plaintiff’s injury claim should be extinguished.

On behalf of the Plaintiff, Eric Goodman argued that the predominant purpose of the lunch meeting was personal or social in nature, rather than the product of a business relationship. The tribunal agreed:

[27] …The plaintiff submits that his [Examination for Discovery] statement that “anything is possible,” regarding whether he and [his friend] would have discussed some business, was in response to a speculative question with respect to a lunch which never took place. The further evidence of the plaintiff in his affidavit is that it was not his intention to discuss business over lunch, but he could not say that he had any intention to avoid discussing business. The purpose of the lunch was purely personal in nature.

[34] …There is strong evidence of a longstanding personal association outside of the plaintiff’s employment… I find persuasive the plaintiff’s evidence that the lunch meeting was arranged due to the fact that Williams’ work near Capilano Road on April 2, 2009 motor made it convenient for them to meet for a social lunch.

[41] In the circumstances, I find that the plaintiff’s travel to North Vancouver to meet Williams for lunch involved a distinct departure on a personal errand…

[42] I find, therefore, that the injuries suffered by the plaintiff in the April 2, 2009 accident did not arise out of and in the course of his employment within the scope of Part 1 of the Act.

With this result, the Plaintiff was entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from a severe lower back injury he sustained in the accident.

Mussio Law Prevents Second ICBC Medical Examination of the Plaintiff

Posted on by Mussio Goodman

There are two ways ICBC can compel an injured claimant to attend an examination by a doctor of ICBC’s choosing. The first is pursuant to a claim for Part VII or “no-fault” benefits, whereby a claimant is receiving reimbursement for treatment expenses or ongoing wage loss, regardless of who was at fault for the accident.

The second is in response to a tort claim; that is, after a plaintiff files a lawsuit against the other driver.

The law generally prevents ICBC from compelling a plaintiff to attend an examination by a doctor of the same specialty more than once. To do so would allow ICBC to “doctor shop”, that is, to send a claimant to, for instance, several orthopaedic surgeons until ICBC finally receives a medical report that serves their interests.

In Socynski v. Cai, ICBC sought a court order to send the plaintiff to an examination with a second orthopaedic surgeon. ICBC argued that the first examination was only with respect to the no-fault benefits claim and not the lawsuit, and it therefore did not count towards the “one doctor per specialty” rule.

The Court ruled as follows:

[14] In this case, [ICBC adjuster] Ms. Mulligan has deposed that on July 31, 2008, the claim file regarding the plaintiff’s claims [emphasis added] arising from the MVA was transferred to her for handling. This obviously referenced both the Part 7 and the tort claims. By the fall of 2008, Ms. Mulligan was aware that the plaintiff had retained counsel with respect to both her tort claim and her claim for benefits under Part 7…

[16] [Wes Mussio] sent Ms. Mulligan an email on December 10, 2008, which contained the following:

I have your letter of December 9, 2008…
The letter suggests that the
assessment is for Part VII issues only.

I take the view that the assessment is
for the tort claim so you are using your
opportunity for a tort IME at this stage.

Ms. Mulligan did not respond to that email. At Court, Eric Goodman argued that Ms. Mulligan’s decision not to respond to, or in any way indicate disagreement with Wes Mussio’s position should be deemed as an implied acceptance thereof.

The Court held:

[21]  In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1)…

Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.

Mussio Law Defeats ICBC Low Velocity Defense at Trial

Posted on by Mussio Goodman

Nobody truly understands the impact of whiplash until they have experienced it for themselves. This painful and often debilitating injury can arise from even a relatively mild collision, and can result in chronic pain lasting from months to years to the rest of the victim’s life.

In spite of this, ICBC has instituted a strict “Low Velocity Impact” (LVI) Program, the purpose of which is to deny any injury claim arising from collisions that result in minimal physical damage to the vehicle.

As argued by Eric Goodman before the Supreme Court of British Columbia in Sun v. Sukhan, there is no scientific or medical support for ICBC’s LVI Program, and the Court should not discount the extent of the Plaintiff’s injuries merely by virtue of the limited damage sustained by his rear-ended vehicle. The Court agreed:

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

In finding that the Plaintiff’s injuries largely resolved after one year and nine months, the Court awarded $20,000 in damages for pain and suffering.

Mussio Law Wins BC Court of Appeal Decision on Injury Causation

Posted on by Mussio Goodman

In Wahl v. Sidhu, the Plaintiff, who sustained soft-tissue and psychological injuries resulting from a car accident in June 2006, was awarded $165,233 at trial. However, the trial judge cut off compensation at June 2009, finding that the Plaintiff would have completely recovered by that time had he been more motivated to mitigate his damages and attend a pain clinic.

On appeal, Wes Mussio argued in the Court of Appeal that the trial judge’s reasoning was not supported by the medical evidence. The Court of Appeal agreed:

[52] …[T]he basic problem here is that there is no evidence that the appellant’s symptoms would have either been reduced or resolved had he undergone the needle test or attended at the pain clinic as recommended by his assessors.

The Court of Appeal found that, since the Plaintiff’s ongoing symptoms were causally connected to the accident, the trial judge had no basis to cut off compensation for pain and suffering and lost wages at June 2009.