ICBC Penalized At Trial For Refusing to Accept Our Client’s Settlement Offer

Posted on by Goodman Law

As we recently announced, after our client rejected ICBC’s $25,000 offer, we proceeded to trial and were awarded $204,000 in the Supreme Court of British Columbia.

With any successful judgment, we were also awarded “costs”, which is essentially an award of additional money to compensate for the work performed over the course of the litigation and, in turn, a means to lighten the amount of legal fees the client has to pay.

In this case, the costs were prescribed at $14,000. However, litigation rules allow for a “double costs” penalty if a settlement offer was made before trial, the offer was not accepted, and the trial award exceeded the offer.

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Mussio Law: Court Finds Bus Driver Liable for Client’s Injuries

Posted on by Goodman Law

We are pleased to announce that the Supreme Court of British Columbia has found the defendant bus driver liable for our client’s broken ankle and shoulder.

In this case, our client was attempting to catch a bus which was stopped at s bus stop. He ran towards the bus, approaching from its front and waving his hand in an attempt to get the bus driver’s attention.

The bus driver admitted to having seen our client running towards the bus; nevertheless, the bus driver closed the bus door and pulled away from the stop just as our client was within reach of the vehicle. The moving bus collided with our client’s hand as he waved from the curb, causing him to fall under the wheels of the bus.

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Mussio Law Wins Another WCB Tribunal Decision Against ICBC

Posted on by Goodman Law

When an injured motorist first informs ICBC of the accident, one of the questions they may be asked 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 Yushchenko v. Costa.

In this case, the Plaintiff drove from his office to meet his mother at home for lunch. The car accident occurred as he was on his way back to work.

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Mussio Law: Jury Awards Our Client $290,400 After She Declined ICBC’s $115,000 Offer

Posted on by Goodman Law

We are pleased to announce that, after declining ICBC’s offer to settle for $115,000, our client proceeded to a two week jury trial resulting in an award of $290,400.

The primary issue in this case was “causation”. In April 2009, 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. We are thrilled with the result and wish her all the best in her continuing recovery.

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: Court Awards Client 100% Liability Decision Against ICBC

Posted on by Goodman Law

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 Goodman Law

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.