A Plaintiff Not Recovering Insufficient To Allow Late Defence Medical Exam

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding that a Plaintiff’s failure to recover from injuries is not enough for a Defendant to secure a late defence medical exam.

In today’s case (Dzumhur v. Davoody) the Plaintiff was injured in a a collision and sued for damages.  In the course of the lawsuit the Plaintiff served an expert report opining that the Plaintiff ought to recovery provided the injuries are responsive to recommended treatments.  The Defendant did not obtain a defence medical report and as the deadline approached for exchange or expert evidence the Plaintiff served an updated report suggesting the Plaintiff’s prognosis was poor.  The Defendant argued they ought to be entitled to a late exam in these circumstances but the Court disagreed noting the defence should have been alive to this possibility earlier.  In dismissing the requested late exam Master Muir provided the following reasons:

[13]         Further, I am not satisfied that the defendants can properly say they shall have been truly taken by surprise by the medical condition of the plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in careful terms that said in essence: provided the plaintiff responds to the treatments prescribed, he should fully recover. Well, that is the very nub of the matter: will he or will he not respond to the treatments? Did he or did he not respond to the treatments? Obviously Dr. Caillier’s second report indicates that he did not

[14]         The defendant then had an opportunity to discover the plaintiff in May of this year, two weeks before the plaintiff saw his doctor. At the discovery, I am advised it was evident that the plaintiff was still playing soccer, but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]         There is no basis that I can see on the evidence for the assertion that the second report of Dr. Caillier took them or should have taken them, perhaps more to the point, completely by surprise. The possibility existed that the treatments would not be successful. The defendant must be seen to have chosen to accept that risk without obtaining an IME before the 84-day deadline.

[16]         One of the important factors in these cases, as noted in Timar at para. 21, is whether the party can claim to be truly surprised by the condition of the plaintiff. Here it is my view that that is not the case. There is nothing that satisfies me that Dr. Bishop cannot do a responsive report to the report of Dr. Caillier without a complete IME of the plaintiff. As a result, the application is dismissed.

$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.

In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.

Saskatchewan Court of Appeal Dramatically Reduces Punitive Damages Award Against Insurers

The Saskatchewan Court of Appeal recently allowed appeals by both Zurich and AIG in a claim advanced by an injured worker, reducing the punitive damages awards made against the insurers from $4.5 million to $675,000.

The plaintiff was a Canadian citizen living in Portugal. He was injured while working for Kumtor, a Saskatchewan mining company, in Kyrgyzstan in 2000. He was insured through two group insurance policies issued to Kumtor. The AIG policy provided workers’ compensation-type benefits and the  Zurich policy provided long-term disability  coverage. The plaintiff applied for benefits and eventually commenced a claim for damages against both insurers.

AIG made intermittent disability payments to the plaintiff for four years, denying or suspending them several times and ultimately terminating benefits in 2004. Under Zurich’s policy, the plaintiff would be entitled to benefits for the first 24 months following his injury if he was incapable of performing his “own occupation” and beyond 24 months if he was incapable of performing “any occupation”. Zurich approved the plaintiff’s claim in 2002, but did not pay the plaintiff any benefits until 2009. Both insurers offered to settle the plaintiff’s claims for benefits for amounts that the trial judge referred to as “ridiculously low.” The plaintiff went without income for several years, had to move back in with his mother, was forced to rely on the financial support of his family, separated from his wife and developed mental health issues.

Trial Decision

At trial, the Court held that both AIG and Zurich breached their obligations to the plaintiff and had acted in bad faith. The trial judge awarded mental distress and aggravated damages for breaching the insurance contracts, and then made the largest punitive damages award in Canadian history, $3 million against Zurich and $1.5 million against AIG. According to the trial judge, the $1 million punitive damages award in Whiten v. PilotInsurance, 2002 SCC 18, previously the highest punitive damages award made against an insurer for a claim of bad faith, was insufficient to “catch the attention of the insurance industry.” Both insurers appealed.

Court of Appeal Decision

The Court of Appeal found that AIG acted improperly in suspending the plaintiff’s benefits knowing that he was incapable of working at his original job, and as a result the plaintiff went approximately 24 months in total without the support that the AIG policy was designed to provide. The Court of Appeal also found that AIG’s offer to settle of $25,000 was an attempt to force the plaintiff to accept an unfairly low settlement of his global claim. This was a serious violation of an insurer’s “most basic obligations.” Despite the fact that significant punitive damages were appropriate, the Court of Appeal reduced the punitive damages award against AIG from $1.5 million to $175,000. This amount was proportionate to the blameworthiness of the defendant, the vulnerability of the plaintiff, the specific harm caused to the plaintiff and the need for deterrence, all factors to be considered in the assessment of punitive damages as set out by the Supreme Court in Whiten.

With respect to Zurich, the Court of Appeal found that Zurich’s administration of the “own occupation” benefits was a “dramatic transgression of the bounds of good faith” warranting an award of punitive damages. Among other things, although Zurich determined that the plaintiff was entitled to 24 months of “own occupation” benefits in 2002, it did not pay those benefits, did not tell the plaintiff his claim had been approved, made an “unconscionable effort” to settle all claims under any kind of policy for about $60,000, and did not actually pay the “own occupation” benefits until 2009, 7 years after approving them.

Despite Zurich’s wrongdoing, the Court of Appeal found that the punitive damages award was so dramatically high that it was “irrational”, was out of line with precedent and should be set aside. The Court of Appeal ultimately reduced the punitive damages award against Zurich from $3 million to $500,000, again taking into account the factors set out in Whiten.

The Court of Appeal also reduced the trial judge’s award of damages for mental distress from $150,000 to $15,000 as against AIG and from $300,000 to $30,000 as against Zurich. Although the plaintiff was entitled to mental distress damages for the manner in which his claims were handled, the award made by the trial judge was “simply too extravagant to be sustained.”

This decision brings awards for punitive damages against insurers in line with the existing case law while recognizing that bad faith on the part of insurers may well result in significant punitive damages awards. The Court of Appeal noted, however, that insurers cannot be held to a standard of perfection, and not every improper denial or suspension of benefits will result in a finding of bad faith.

Authors

Andrew Harrison
AHarrison@blg.com
416.367.6046

Adriana De Marco
ADeMarco@blg.com
416.367.6725

In today’s case Hendry v. Ellis the Plaintiff was injured in a collision and sued for damages.

Read more

$75,000 Non-Pecuniary Assessment For Chronic Mechanical Neck Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic neck injury caused by a motor vehicle collision.

In today’s case (Renaerts v. Renaerts) the 24 year old Plaintiff was injured as a passenger in a 2009 collision.  She sustained a variety of injuries that made a quick recovery but also sustained a neck injury which remained symptomatic to the time of trial and had a generally guarded prognosis.  In assessing non-pecuniary damages at $75,000 Mr. Justice Brown provided the following reasons:

[215]     Given accepted evidence as a whole, I agree with Mr. Shew that rehabilitation should focus on healthy activity, core strengthening, and a guided exercise program. I do not see this form of therapy requires only one assessment, off you go, and good luck to you. A kinesiologist and properly trained fitness instructor would encourage the plaintiff to expand her functioning and strength within safe medical limits and increase her confidence. Further, the plaintiff would benefit from instruction from her family physician, at no cost, on how to make the most effective choice and use of pain medication. The plaintiff had consumed six to eight pills a day…

[218]     In summary, while the plaintiff’s symptoms and limitations are likely to be permanent, and the general tenor of the opinions on prognosis is at best guarded, there are also reasonable grounds to expect that through strengthening exercises, increased activity, and appropriate use of the treatment modalities and the program just outlined, the plaintiff’s symptoms and level of functioning could see some improvement on a more sustained basis…

[241]     Chronic mechanical back pain is her only really significant injury, as the others cleared up within a couple of months or so of the accident. The record shows that she made some improvement with chiropractic treatment and physiotherapy, but I agree with those medical opinions that have opined the emphasis should be on strengthening, fitness and suitable activities. I do not see chiropractic adjustments and physiotherapy and the assistance of a kinesiologist and fitness instructor as the means of a cure, rather, as the means of helping her progress, and through strengthening, building self-confidence, be better able to cope with her limitations and reduce them, to some degree. This is not a case where the plaintiff has had to give up on her recreational activities. She is capable of independent living, albeit, she will require some limited assistance with housekeeping, such as annual cleaning. I have made some allowance for loss of homemaking capacity; but in my view, considering the nature of her homemaking limitations, $5000 is a reasonable representation of her loss in that area.

[242]     The plaintiff has sought to get on with her life to the best of her ability, with the encouragement of her friends, who amply attest to her limitations and the pain and limitations she has experienced. It is important to note that the plaintiff sustained these injuries at a time when she was somewhat vulnerable, not living at home, supporting herself and having to manage what was a fairly complex life and difficult set of responsibilities.

[243]     I award the plaintiff $75,000 for non-pecuniary damages, inclusive of loss of homemaking capacity.

Court Finds ICBC Under No Legal Duty To Inform An Insured Of Hit And Run Claim Obligations

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.

In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision.  After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene.  The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.

At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist.  The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC.  Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists.  The Court provided the following reasons:

[119]     The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:

[45]      As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

[125]     Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.

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