Hit and Run cases are complicated

There is no way around it; Hit and Run cases are complicated.  

The area of law that gives rise to a claim for personal injury and losses, such as out of pocket expenses and wage loss, is called Tort law.  Under Tort law which has developed through judges in what is called "the common law",  the injured person can sue the person that injured him or her (called in law, the Tortfeasor").  

What happens if the victim is unable to identify the Tortfeasor because the Tortfeasor fled the scene.  Under the common law, the victim has no remedies.  One cannot sue a Tortfeasor unless one knows who to sue.

This development in the law is very unsatisfactory.  It creates an incentive to flee the scene and leaves legitimate victims to suffer with no remedy.

To fix this problem, the government passed a law that modifies the common law.  The government passed law allows a resident of British Columbia to name ICBC in place of the unknown Tortfeasor.  The specific law is section 24 of theInsurance (Vehicle) Act and it is complicated. It is complicated even further because judges have interpreted the section in certain ways that would not make sense to someone not trained in this area of law (or in ways that do not make sense to someone who is trained in this area of law, but at least he or she knows the law even if it does not make sense!) 

The government and judges interpreting the legislation have made very strict rules on what a victim has to do in order to comply with the legislation.  I was once in front of a Registrar of the Supreme Court of British Columbia who was amazed at what was required and candidly admitted that he would not even know what was required of a victim to perfect (the legal word for meeting all of the requirements of the legislation) a claim under the hit and run provisions.

The law was complicated by the fact that ICBC was NEVER REQUIRED TO ADVISE A PERSON OF WHAT WAS REQUIRED.  This development in the law was really quite stunning to me.  Fortunately, a recent case has expanded the law in this area in a good way.  The case is Springer v. Kee.  

Keri Grenier, a lawyer in Kelowna, BC at the law firm Pushor Mitchell, has published an excellent blog post that I recommend to all my readers.  For your convenience here is a link:

Keri Grenier blog post

Thank you to Keri for putting word out about this issue and thank goodness some sanity has been inserted into the law on this issue.

Blogger is not supporting this blog anymore, so I have created another blog where my current posts are located:

www.personal-injury-lawyer-vancouver.blogspot.com

Cross Examination of a Neurosurgeon - Part 4

It has been a few months since I left off with this story. I highly recommend going back through my blog to read parts 1-3 as this post won't make much sense on its own. Those of you following will remember that we left off with the doctor reversing his opinion on causation.
Once the doctor folded on causation, the only thing left was to use that doctor to build my case. One of the issues I had was whether my client had an ongoing disability.

The doctor had indicated that my client was not a surgical candidate, so I decided to start there. I had him confirm that she was not a surgical candidate because surgery would not relieve all of her symptoms. The other side of the coin is that if she is not a surgical candidate and she has not spontaneously resolved in the six years after the accident, then that means that she was likely going to live with this pain for the rest of her life. He agreed.

He agreed that the only thing she could do to manage her symptoms was limit her activity and avoid certain activities...activities such it would be impossible to do her job without modifications. As she had lost her job of 28 years and was looking for work, the neurosurgeon acknowledged that her injuries would be a factor working against her.

He agreed that the treatment that she was getting was not likely going to cure her. However, he did agree that if the treatment helped reduce her pain, then it would seem appropriate.

In fact, by this stage the doctor pretty much agreed with everything. I kept putting more and more helpful propositions to him in a polite and kindly way. He kept building my case.

In the end, agreeing to the video deposition ahead of the trial was a very good decision. The case settled in advance of the 3 week trial. There were some other issues that made settlement make a lot of sense. Sometimes, the best trial is the one that is avoided.

Success as a lawyer is not measured in trial wins or losses...it is measured in your ability to get an outcome for your client that is good for them and one they want. In this case, that was a settled case for more than ICBC was offering before the video deposition, but without having to go through a 3 week jury trial.

If you enjoyed this story, let me know and I will post another story.  Visit my updated blog:

www.personal-injury-lawyer-vancouver.blogspot.ca

Another McComb Witten trial win

My colleague, Richard Chang, recently got a great court award for a nice lady with a walker who was injured in a bus accident.

ICBC refused to make a reasonable offer, but they could not scare our client from exercising her right to have her case heard by a judge.  

After hearing the case, Mr. Justice Gauer awarded our client over $25,000 for her pain and suffering but awarded an additional $26,500 for the loss of her ability to do housework.

Congratulations Richard and congratulations Ms. Hadzic for having the courage to take your case to a judge.


Check out my new blog at:


personal-injury-lawyer-vancouver.blogspot.com

Jeff Witten at Leprechaun

My colleague Jeff Witten is a damn fine lawyer with an outrageous sense of humour.  Who says a lawyer has to be a stiff shirt.  Have a look at his St. Patrick Day video which is located on the side on my blog!!!


See video at my new blog:


www.personal-injury-lawyer-vancouver.blogspot.com
personal-injury-lawyer-vancouver.blogspot.com

Important new case for people with ICBC claims

Today the BC Court of Appeal released a case that will have a profound impact for many people recovering from a car accident in BC.  


Under the law in BC, a injured person has access to two pools of money.  One through the Tort claim which results in compensation at the end of the claim.  The other pool of money is through "no fault" or "Part 7" benefits, which are paid up front.


Under the "no fault" benefits, there are some mandatory benefits which ICBC MUST pay, subject to certain conditions.  There are also some discretionary benefits which ICBC may pay.


ICBC has long held (when it suits its interest) that benefits for massage therapy is discretionary and ICBC's policy is to pay for up to twelve visits in the first 8 weeks.


Today in Raguin v. ICBC, Madam Justice Rowles sent ICBC a very different message.  Massage therapy benefits are actually a MANDATORY benefit.  That means, if you meet the requirements of the regulation, ICBC MUST pay for your massage therapy up front.


The decision today should make paying for treatment much easier for many people.  The problem that many people with ICBC claims will likely run into is forcing ICBC to pay for these treatments even if the Court of Appeal has told ICBC that they are mandatory.


As a law firm, McComb Witten is putting together a strategy to enforce this benefit for our clients.  We do not expect ICBC to pay willingly.  Our job as lawyers, however, is to get the money for our clients that they have a right to, but ICBC does not want to pay.  


In fact, that last statement is exactly the reason why people with ICBC claims hire lawyers and the reason I enjoy being a personal injury lawyer in Vancouver, BC.

Cross-examination of a neurosurgeon - Part 3

You will recall that I left this story with the ducks lined up for the second goal.  The doctor wrote in his report that the accident was not the cause of my client's symptoms.  For those of you new to legal principles in ICBC claims, a plaintiff (the injured person) must prove that the accident was a legal cause of the injury - the principle is called causation.


The second goal was to get the doctor to reverse his opinion causation. 


I started with a couple of accepted medical facts....


For the rest of this post, please visit my new blog at:


www.personal-injury-lawyer-vancouver.blogspot.com

Family Lawyer and Estate Planning

As a Vancouver personal injury lawyer, I am regularly asked by clients and friends for a referral to a good family lawyer or help with wills and estates.  Because I practice exclusively in BC car accidents, I know lots of Vancouver personal injury lawyers and ICBC claims lawyers.  I do not, however, run across many family law or estate planning lawyers in my practice.  I am happy to let my readers know of a couple of fine family law and estate lawyers to whom I can confidently refer clients.


To see the rest of this post visit my new blog at:
www.personal-injury-lawyer-vancouver.blogspot.com

Another trial success for the McComb Witten team

 I would like to thank the ladies and gentlemen of the jury who sat through two weeks of evidence and gave up their Saturday to deliberate.  They returned a fair and reasonable verdict that clearly weighed the totality of the evidence.  


This trial was a coming out party for Meghan Neathway and the McComb Witten litigation team.  Meghan did an amazing job as co-counsel on this trial.  She has a nose for detail and a heart of  a lion.  Meghan was a key contributor in the organization and selection of our evidence, refinement of our theory of our case, and preparation of our witnesses.  She did an amazing job with the witnesses she took at trial.  What I like most about Meghan's approach is her easy ability to be genuine even on a stage such as a jury trial.  Congratulations to you Meghan - you are a fine trial lawyer.


Anybody looking for a great Vancouver personal injury lawyer would be in great hands with Meghan.  Check out her bio:
Meghan Neathway's bio


Finally, our client is a class act.  A brilliant gentlemen with integrity and courage.  He suffered life threatening injuries and has the strength of character to make the most of his situation.  Two broken legs, brain injury, skull fracture, blowout fracture of his eye socket, fracture through a joint at the base of his skull, two broken bones in his back, and a shattered tailbone.  He made it out of his wheelchair 21/2 months later and was back at work 2 weeks after that!!!  ICBC told him that "he was the author of his own misfortune".  He had the courage to take his case to a jury and they found the driver that hit him 75% responsible for the accident.  Again, not exactly what we were looking for, but was a fair and  reasonable assessment of the evidence.  All in all the verdict was entered for $640,000 less 25% for contributory negligence.


The jury gave our client the resources to get the medical care he needs, compensated him for his past wage loss and gave compensation for the hit to his career and gave him a fair and reasonable amount for his pain and suffering.


Thank you to our client, our judge, Mr. Justice Abrioux, my colleague Meghan Neathway, and the jury.  It was great to see our justice system work.

Cross-examination of a neurosurgeon - Part 2

Damn you blogger for not supporting this template...come visit my new blog and read this post at:

http://www.personal-injury-lawyer-vancouver.blogspot.com/

Cross-examination of a Neurosurgeon - Part 1

Blogger is no longer supporting this template.  Please see this post at:

www.personal-injury-lawyer-vancouver.blogspot.com

I've got a green light. I can just go, right? Wrong!

Unfortunately, Blogger is no longer supporting this template.  See this post at my new blog at:

 www.personal-injury-lawyer-vancouver.blogspot.com

Jaywalker hit, driver blamed

Unfortunately, Blogger is no longer supporting this template.  Please see this article at:

http://www.personal-injury-lawyer-vancouver.blogspot.com/

Another McComb Witten Trail Win

ICBC often tells people that there is not enough damage to their vehicle, so ICBC is not going to consider compensation for the person (ICBC calls this a LVI or low velocity impact claim). This position can be a real hardship for some people who have actually been injured in an accident.

I recently did a trial for such a case, Eom v. Chand, reasons unpublished.

On July 6, 2011 Justice Leask provided oral reasons for the trial. Until days before the trial, ICBC refused to make any offer to Ms. Eom. When the judgment came in, it was for 12 times what ICBC finally did offer. At trial, ICBC said that Ms. Eom recovered within two months of the accident. The problem with that theory is that the evidence of physiotherapist, Angelica Reeve (who Justice Leask called the most impressive physiotherapist he has had testify before him). She was highly trained with a Master's degree from one of the top universities in the world and Angelica testified that she could feel that the joints in Ms. Eom's neck were not moving properly when she treated Ms. Eom. ICBC's theory also did not take into account the fact that Ms. Eom's doctor told the judge that she thought Ms. Eom was only 50-60% recovered at the time of the trial.

ICBC attacked the credibility of my client, her doctor, the physiotherapist. None of the attacks had any merit, but these are the tactics that people often face when in trial. ICBC never came up with any theory that factored in the fact that Ms. Eom, her doctor, and her physiotherapist, may actually have been telling the truth.

In the end, ICBC told the judge that her claim was worth as little as $2000 dollars. Ms. Eom had more in "out of pocket expenses" than that. Justice Leask awarded Ms. Eom $132,042.20 for this so called "LVI denial".

I don't think that the people at ICBC are bad, in fact I have quite a lot of respect for many of the people I deal with at ICBC. Sometimes, however, the bureaucracy of the ICBC machine can squash you unless you have the will and tools (including a good lawyer) to fight for your rights.

Congratulations to Ms. Eom who had that courage to withstand these attacks and candidly tell the judge her story.

By the way, if you are looking for a good physiotherapist in North Vancouver, I can recommend Angelica Reeve at 19th Street Physiotherapy 604-988-5221.

Check out my new updated blog at:

http://personal-injury-lawyer-vancouver.blogspot.com/

Find answers to your ICBC claims at my new blog

Unfortunately, Blogger is no longer supporting changes to this template and I can do little more than add text.  I'll save you from a technical explanation, but I have had to create a new blog.  Find my new blog at:

http://personal-injury-lawyer-vancouver.blogspot.com/

Hataw Pinoy

As a proud sponsor of the Filipino Summer Festival, McComb Witten had a booth where we provided information on ICBC claims and gave away a tonne of great stuff...including a draw for a one once gold coin!!

The festival can only be described as a smashing success.  The main stage showcased a steady stream of amazing artists from child rock star performers to stunning dance troops.  The impact of Singing Idol was obvious as the breadth of talent was incredible..

The food provided by restaurant vendors such as Goldilocks, Kumare and others was nothing short of spectaclar.  We intend to come back at Christmas...even if it is only to get some more of the fantastic Filipino BBQ. 

To all of the people who came by our booth and chatted with us, I just want to say thank you and Hataw Pinoy.

http://www.philippinesummerfestival.com/our-sponsors.html

Will going on a vacation affect my ICBC claim?

As a Vancouver personal injury lawyer dealing with ICBC claims, I get asked this question all the time:

"I had a vaction booked before I was involved in a car accident.  Will it affect my claim if I go?"

Answer: Yes.

The better question is:

Should I go anyway?

To answer this question, you will need to get specific advice from a lawyer on your case...(insert plug here) like the fine lawyers here at McComb Witten who deal only with ICBC claims :-).

I can, however, provide some useful legal information that might help you understand how ICBC may use your vacation to obtain evidence.
  
For years ICBC has asked for photos (with mixed results) from vacations for people injured in BC car accidents and having an ongoing ICBC claim.  A recent decision requires the injured person to produce all photos plus digital "metadata" from their vacations 1 and 7 months post accident.  Here is a link to the case:

http://www.courts.gov.bc.ca/jdb-txt/SC/11/08/2011BCSC0885.htm

In a file I had years ago, a client was required to produce photos from a trip to Jamaica.  She produced a number of photos including one of her smoking a self rolled "cigarette".  Now, I don't judge my clients, but a jury might.  So, the question from a lawyer's perspective becomes "What is a jury going to do with this evidence?"

HST in BC

During the last federal election, I was asked by the Vancouver Sun to participate in an online blog "Family Matters" dealing with political issues from a family perspective.  Following that, the Vancouver Sun asked us to participate in a story theywere preparing on the HST.  We were asked to keep our receipts for a few weeks to see how the HST was impacting our spending.

A few weeks ago the story ran in the Vancouver Sun.

http://www.vancouversun.com/news/Family+feels+fatigue+sees+some+merit/4998628/story.html

 As I was looking at my ballot yesterday, I was still not sure how I was going to vote.  I see the merit to switching to one tax.  I think the government treated the people of BC with disdain in the way that they implemented it.  The government is still engaged in serious fear mongering and distribution of (at best) slanted information.  The HST was a clear cash grab and hidden transfer of tax burder from business to individuals.  The Fight HST side has shown itself to be little more than an aging former politician who is having a glorous run in the spotlight.

The most persuasive information on the HST (and I think factually honest) is a u-tube video by UBC law student Chris Thompson.  Congrats to Chris (who I don't know and never met) for producing something that appears to be information without a political swing.  If you have not seen the video, check it out.

http://www.youtube.com/watch?v=nZXu3LXNwEg

For me, perhaps the deciding factor was Bill Vander Zalm's thoughtless and hollow response to Chris's compelling video.   Vander Zalm essentially resorted to childish name calling.  The answer seemed to me to be illogical and vain.  It did more to discredit Vander Zalm's message than a substantive answer.  In fact, it made me realize that there probably wasn't a substantive answer to Chris's criticisms.  Here is Vander Zalm's response:

http://www.youtube.com/watch?v=rO1NjpqWDIU&feature=related

Decide for yourself!!

Bus claims

Recently I looked at a number of files where people have been injured when they have fallen as a result of a sudden movement by the bus driver and want to make an ICBC claim. One might think, "so they fell - suck it up", but these people have all suffered fairly serious injuries (all fractured some bone or other).

The reality of our law in BC is that you have to prove that somebody was negligent and that negligence caused your damages (see my earlier post about an ICBC claim that went sideways).

So, just because the Vancouver bus driver slammed on the brakes does not mean he was negligent.

I have two things to say about these bus claims that I've reviewed. First, if you have been injured on a bus and want to make a claim - hire a lawyer right away, because you are more than likely going to mess it up if you deal with it on your own. I looked at two cases this week where I refused one claim because the previous law firm didn't take the proper steps and I looked at another where a colleague of mine at McComb Witten handled it from the beginning. My colleague put together a good claim because he asked the simple question "who was negligent here?" and took steps to find the person who was negligent (and it may not have been the bus driver). Second, don't bother unless you are seriously injured!!!

Need a Physiotherapist in North Vancouver?

In an oral judgment for a ICBC claim for a Vancouver car accident, Justice Leask commended the knowledge and skill of physiotherapist Angelica Reeve of 19th Street Physiotherapy.  Justice Leask confirmed my own opinion of Ms. Reeve when he described her as "extremely professional and thorough."  He went on to say that he accepted her evidence without reservation.

To Ms. Reeve's credit, Justice Leask described Ms. Reeve as the best physiotherapist that he ever had testify in his court.

I can confirm that Ms. Reeve was impressive in her knowledge and had a passion for her work.  Although I have never been a patient, I can say without hesitation that anybody looking for a good physiotherapist in North Vancouver would be well served to give Angelica Reeve a call at 19th Street Physiotherapy.

To make it easy, here is the contact info:

19th Street Physiotherapy
224 West 19th Ave, (the office looks like a house, but it really is the office)
North Vancouver
604-988-5221

Check out the website:

http://www.19physio.com/staff.html

Creating New Law

As a vancouver personal injury lawyer or a litigator in general, it is always a little satisfying to create new law...even if it is simply an incremental change in the law for the better.  Yesterday, in an oral judgment following a trial, Justice Leask moved the law forward in a very helpful way.

Under the Rules of Court in BC, it is very hard to obtain admissions of fact from another side.  There are very few tools to force the other side to make reasonable admissions of fact.  When a party has been found to unreasonably deny facts, the court can award as punishment costs against the unreasonable party.

In the past, the courts in British Columbia have only awarded a complete set of costs as punishment or no costs because the conduct was not bad enough to justify such a harsh penalty.  For some reason, despite having complete discretion to award any amount as costs, courts have not awarded a "slap on the wrists" amount for costs to encourage reasonable admissions.

Additionally, the court has traditionally only looked at lost or wasted court time as a measure for costs.  Considering that only 1% of ICBC claims go to trial, extra burden on the other party ought to be a factor to consider rather than simply lost court time.

In the decision yesterday in Eom v. Chand (as yet unpublished), Mr. Justice Leask awarded $1000 against ICBC as costs for unreasonably denying facts until mid trial.  The unreasonable denial did not take up much court time, but did put the plaintiff at quite a burden.

It is not an earth shattering change in the law, but it is a step in the right direction.

Diminished Housekeeping Capacity

In my last post before taking a hiatus (November 2006), I wrote about how the law is changing to better reward unpaid housework which is largely performed by women.  Since then I have done two trials where loss of housekeeping capacity formed a significant part of the award.

In O'Rourke v. Everett, 2009 BCSC 1277, the judge awarded my client $18,720 for loss of housekeeping capacity.  The replacement work was performed by her husband.  The law does not, nor should it, require that the work be paid for by an outside provider.  The logic is that wealthy people can afford to replace the loss of housekeeping services, where modest income people could not.  Therefore the rich would be receiving better treatment under the law. In reality, that statement is probably true, however, our courts in British Columbia strive to develop case law consistent with equality values in the Charter of Rights and Freedoms.  Read the case for yourself:

http://www.courts.gov.bc.ca/jdb-txt/SC/09/12/2009BCSC1277.htm

In Grewal-Cheema v. Tassone, 2010 BCSC 1182 the judge awarded $12,000 for loss of childcare services for the time that Ms. Grewal-Cheema was attending rehabilitation treatments.  Ms. Grewal-Cheema's husband rearranged his schedule to look after their child while his wife was at treatment.  The loss, however, is Ms. Grewal-Cheema's and not the husband's.  This type of claim is easy to overlook, but can be the difference between winning and losing a case.  Here is a link:
http://www.courts.gov.bc.ca/jdb-txt/SC/10/11/2010BCSC1182.htm

To my colleagues - I encourage you to push the law to drive towards equality.

To my clients - I give you my committment to know the law and search out evidence with you to prove all elements of your ICBC claim.

Adjustable height desk

When I moved my practice to McComb Witten, I purchased an adjustable height desk.  Having used it now for a while, I can easily say it is one of the best purchases I've made in a long time!

I bought the frame only from Geekdesk.  It comes with an electric motor which raises the height of the desk to any convenient level.  I can go from sitting to standing in about 20 seconds. 

For the desk top, I purchased a Gallant table top from Ikea and mounted it with some screws.  To give me some extra desk space, I purchased an extender and a separate 3 foot table top with stationary legs (my phone, head set and other items remain on the non-adjustable part of the desk).  Total desk space is about 78in x 78in L-shaped desk.

The desk does, however, have some limitations.  A coworker came into my office and abruptly leaned heavily on the extender which is not supported.  The extender gave way pretty quick in a rather large crash.  I had to remount the extender, but I haven't had any problems since.

I'm into the desk for about $1250 Cdn.  There are other options for a three legged adjustable height desk at Ergodepot which look to cost about $3000.  Considering how much I like my adjustable height desk, either would be a good option.  The Ergodepot desk would be a little more stable if someone leaned on it!!!

Personally, I go from sitting to standing about 2 times a day, with some days all sitting - some days all standing.  I found my posture improve within a few weeks!

PT Health Physiotherapy

I would like to thank all of the physiotherapists that came out for the presentation on giving evidence at trial in a vancouver personal injury claim.

It is a testiment to the committment to their clients that PT Health and their physiotherapists are learning the skills needed to help their patients.

If you need a physiotherapist for your car accident in Vancouver, Burnaby, Surrey, Squamish, I can recommend the committed people at PT Health.

Game 7

Ok...if there were ever a time for clouds to part and have the hockey gods shine down on Vancouver Game 7 is the time!!!

Please, please, please, please...we want The Cup.  We deserve The Cup.  Now is Vancouver's time!!!

ICBC Claim goes sideways

As I was getting my news (Canucks) hit from the Vancouver Sun, I saw a link to an article titled:

B.C. woman rear-ended in accident may lose driver's licence

www.vancouversun.com/technology/woman+rear+ended+accident+lose+driver+licence/4832794/story.html

The story is essentially about a woman who was injured in an accident that wasn't her fault, but she still owes money to ICBC to the tune of about $42,000.

The issue this woman faces is that, according to the judge, she seemed to have sued the wrong person.  The person that ran into her said she slipped on an oily substance on the road.  The owner of the vehicle leaking the oily substance was not discussed by the judge, but it seems that she did not sue the "John Doe" or ICBC.  I don't know when she hired her lawyer, but the person that was negligent was not known to her and the hit and run provisions would have applied to her.

If you have a hit and run situation, you have very, very strict obligations - failing which your claim could be dismissed and you would owe money just like this poor lady.  It highlights the importance of hiring a lawyer for your ICBC claim.

If you have questions call me at McComb Witten at 604-255-9018.

ICBC Claims and Storytelling

I read a book a number of years ago that crystalized to me what my role as a trial lawyer is when I present a case in court. The book:

Theatre Tips and Strategies for Jury Trials, by David Ball

Essentially, when presenting a case in court for an ICBC claim, I a storyteller. The story is how the personal injury impacted my client's life. The story is told through characters (witnesses).

It is such a simple concept, but so powerful. A good storyteller thinks about his/her audience and takes the audience to the conclusion and lets the audience draw the conclusion.

In a subsequent book David Ball writes that a trial is about whatever you spend the most time on....a pretty similar thread as to what Brian Tracy says about life in general (see an earlier post).

Hmm...all of the pieces seem to fit together like a puzzle!

On being a system for evaluating evidence

This morning I was listening to a audioCD on the way in to work. The key piece of advice from this Brian Tracy CD was that "you become what you think about most of the time". And I thought..."(bleep) I'm going to become a system for evaluating evidence if I'm not careful!!"

Actually, I think it is pretty powerful advice. So much so, that I have listened to the CD on the drive home on each off night of the playoffs.

I suppose his point is that focusing on negative things that happened in the past will actually project them forward and impact your life into the future. If you think about what you want and how you are going to get it, most of the time, then you are bound to start taking steps to make that goal happen.

Seems worth a try to me!!

Back to Blogging

Well, it is amazing what a few big trials, getting married and having a couple of kids will do a person's blog!!! 4 years. 4 years since my last post. I had to do a google search for Personal Injury Lawyer Blogger just to find my own blog!!!

Well, I'm back and back to posting.

I have recently moved my practice to:

McComb Witten, Personal Injury Lawyers
210 - 2730 Commercial Drive,
604-255-9018

I still only represent BC residents injured in car accidents. Most of my clients have ICBC claims, but sometime the other driver is not insured with ICBC.

Diminished Housekeeping Capacity

On November 3, 2006, I gave a presentation at a Medical/Legal conference on the presentation of a chronic pain case to a trial judge. To compliment the presentation, I wrote a paper on the current state of the law in British Columbia regarding Diminished Housekeeping Capacity. Below is an excerpt from the paper I wrote for the course materials.
____________________________________________________________________________________

The partner who provides domestic services often works far in excess of 40 hours per week in order to provide a "home". Women who work in the home may have given up a career or a type of work which would enable them to improve their earning capacity.

Justice Cory, Supreme Court of Canada
Peter v. Beblow

The idea that a man who primarily works outside the home is entitled to claim for a pecuniary loss for his loss of earning capacity, yet a woman whose capacity to work inside the home is diminished is entitled to nothing for the loss goes against the core principles of Tort Law and promotes continued gender inequality.

It has taken a long time, but courts in Canada are finally recognizing that unpaid labour performed by women inside the home is an essential component to the economic viability of the family unit. Since the Supreme Court of Canada decision in Sorochan v. Sorochan in 1986, courts have been recognizing the contribution of women inside the home in family disputes through principles of unjust enrichment. Unfortunately, gender equality has been slower to develop in Tort Law than it has in Family Law and diminished house keeping capacity does not appear to be pursued as seriously as loss of earning capacity.

The leading case in British Columbia on diminished housekeeping capacity is a decision of a five member panel of the Court of Appeal in Kroeker v. Jansen. Since the decision of Gibbs J.A., for the majority, in Kroeker, the law has taken a few steps in various directions. This paper is intended to review the development of the law relating to diminished housekeeping capacity and highlight some of the strengths and pitfalls of advancing this type of claim.

...

Can ICBC force you to hand over your computer?

This is hot topic in British Columbia courts. ICBC frequently brings applications to force injured people to hand over their computers hard drives. They want to know what websites you visit, what documents you keep, and what your e-mails say. I've been seeing these types of appications for the last few years, but it still isn't clear what exactly it is that insurance companies, like ICBC, are trying to find or what exactly it is that looking into your computer will do prove in your case.

One theory for this type of application is that insurance companies are simply trying to wear down the resolve of a plaintiff. When an insurance company video tapes a person at her house or going to the bank and "scrubs" her computer to look into her e-mails or websites she has visited, then that person often feels violated and worried that laundry - clean or dirty - will aired in public. The reality is that many people have a hard time with keeping the strength to stand up for what is right.

The good news for people is that judges on these applications to "scrub" computers are recognizing that privacy concerns are REAL and there ARE boundaries for the long arm of insurances companies.

See Ireland v. Low, 2006 BCSC 393
http://www.courts.gov.bc.ca/Jdb-txt/SC/06/03/2006BCSC0393.htm

Latest Jury Award

Well we finally sorted out the remaining issues from the jury trial. In the end, the award was just over $2.8M for our severely brain injured client. We hope that the jury awards will provide some kind of better existence for her. Hopefully, in the future she will have a care worker to come in to her home and help her write a letter to her parents or take her out for a walk to a garden as she loves flowers.

By law I am supposed to include a warning that past results are not necessarily indicative of future results and the amount recovered in other litigation outcomes will vary according to the facts in individual cases...but the reality is that money is a poor substitute for health and a normal mind...unfortunately it is the best we can do to improve her life.

Debriefing the key steps in a personal injury trial

Because we still have to sort out a few issues, I can't comment on the details of my last jury trial.

I think it is fair, however, to comment generally on many of the issues that a personal injury lawyer in British Columbia must face.

The Jury

If one starts from the fact that most people, including jurors don't like lawyers. More accurately, they don't like a certain perception that they have of lawyers. That is, the reason that people hate lawyers is because a lawyer twists the truth...a lawyer hides the truth...a lawyer will try to convince you that something is red when everyone knows it is green. I mean, if that is what people think that lawyers do, then who blames them for disliking them.

So, the solution to this problem is simply...don't be that "lawyer". Start with a well thought theory of your case and ensure that you select witnesses that fit into your case. Your gut and your heart should be the organs that dictate your conduct in front of a jury. Your brain, as a lawyer in front of a jury, can get you lost. Your brain is only useful if it follows your gut and your heart.

Theory of your Case

When I describe the trial to my clients, I explain that we are pulling information from their life to tell a story...a story about who they were before the accident, how the accident happened, and how the accident has affected their life.

Judges and juries are looking for a story as well and I tell clients that we need to tell a good story...Rocky...Rocky is a good story. It captured the imagination of everyone who saw it and still today, almost 30 years later is a good story. I always am looking for the emotion that is drawn out in Rocky.

Then again, Wall Street was a good story, but we try to stay away from looking like Gordon Gecko (Michael Douglas's character).

BC Court of Appeal

Well, it has been a dog fight for the last few months and I haven't made the time to post.

The most pressing file that I have been working on has taken me to the BC Court of Appeal and into a month long jury trial.

However, it was all worth it as the BC Court of Appeal quoted from my factum (legal argument that you hand up to the judges) and the jury awarded our client enough to help her pay for her care needs into the future.

I'm thinking of doing a de-briefing analysis to outline the work it took to reach this success so that I can learn from it in the future.

I'm not sure if the link above is working so here is the link to the judgment.

http://www.courts.gov.bc.ca/Jdb-txt/CA/06/00/2006BCCA0079.htm

 

Provincial Tax on Legal Services

There has been quite a bit of action this year on the topic of taxes on legal services. In a case called Christie, the BC Supreme court found that the tax of legal services for people under a certain annual income ($28,000 - however there is debate whether that is increasing to $32,000) is unconstitutional as it act as a barrier to access to the judicial system.

The government has appealed the decision, however, in the mean time has taken the position that any award that is made should be counted in calculating the "income" of the individual. This created an injustice as people who have the money pay a lawyer by the hour would not have to pay the tax, however, people too poor to pay a lawyer by the hour, but rather pay the lawyer out of the settlement would be paying the tax.

Recently, in the Muira case, the court found that the settlement funds should not be considered in calculating annual income.

To date, there has been no direction from the government or the law society of British Columbia.

The cases can be found at:

Muira
http://www.courts.gov.bc.ca/Jdb-txt/SC/05/15/2005BCSC1569.htm

Christie
http://www.courts.gov.bc.ca/Jdb-txt/SC/05/01/2005BCSC0122err1.htm

Past Wage Loss

The Supreme Court of Canada has said that tax consequences are not an appropriate consideration for a court in a claim for personal injuries. This means that the Plaintiff's loss is his or her ablility to earn income and the fact that some of that is taxable is not a reason to reduce the amount the defendant has to pay the Plaintiff.

In BC the government did an end run around this decision by making payments by ICBC for past wage loss only on a "net" of tax basis.

Is it right? Is it fair? Well, that is certainly open to debate, however, it does appear to be outside of the jurisdiction of the Provincial government, because they are essentially taxing the lost income of the Plaintiff through ICBC...which is in the exclusive jurisdiction of the Federal government an CCRA (formerly Revenue Canada).

Brain Injury literature

I have noticed an add on my blog that has some useful information for any brain injury survivor. The link is TBI Brain Injury Rehab. I'm not sure how long the ad will be posted, so I will include the link in this posting:

http://www.nrio.com/

I do not know this organization, so cannot comment on how effective it is. However, if you click on "resources", you will find some great information.

Something that is always a complicating factor with brain injuries is the effect on personality and cognitive abilities. Most people know that psychiatric conditions can have an impact on both these areas.

As a survivors advocate, it is important to determine whether the change is a brain injury - organic and not likely to improve...or a psychiatric condition that may improve with treatment. This allows us to get the best treatment for our client to restore his or her life. Further, if the change is psychiatric, we need to determine whether the trauma was a "material contributing factor" in the onset of the condition. That is essentially a legalism for "Was the the accident a serious factor causing the condition.

If this is a topic that interests you, then I encourage my readers...if there are any, to look at the website.

Pacific Coast Brain Injury Conference (day 2)

The second day of the conference was great. I attended a lively session on "Capacity". Interestingly, the presenter, a well known vancouver lawyer, delivered a rather technical presentation on various sections of legislation impacting rights of individuals. However, the audience, that had many brain injury survivors and family members, had very real questions.
These questions really highlighted the strength of this conference because it puts everyone in the same room, which can be a catalyst for change:

* service providers
* survivors and family members
* lawyers
* specialists
* researchers
* advocates

At the conference I met two fabulous people, an Educational Consultant and a woman who is a mother of a child with a brain injury who is a tremendous advocate. I hope to maintain a relationship with these two individuals because they have the ability to make positive changes for my clients. They are also wonderful, energetic people who I have lots to learn from.

I was talking to a physio therapist from Ontario who commented that she sees lawyers as a key element in a patients rehabilitation team. It warms my heart to hear that as many people in the medical field, typically family doctors, have substantial resentment towards lawyers (I suppose it isn't surprising considering the general attitude towards lawyers).

I entirely agree that we, lawyers acting for victims of car accidents, can be a strong asset in the rehabilitation of the client. If a doctor, chiropractor, physiotherapist, Occupational therapist calls me, I put everything aside an talk to them. Typically, they are seeking funding for some program and the lines of communication are down with the clients first party insurer. However, I often pay for a medical legal report from a specialist or get an MRI out of my own pocket (or rather my firm's trust account) just to get a diagnosis and get it into the hands of the family doctor or care providers.

I firmly believe that we as lawyers have to do a better job convincing doctors that our goal as our client's advocate is to minimize his or her losses (yes document them and collect evidence of his or her deficits).

It seems obvious really! Clients will be happier with their life and with us if we can help in any way to minimize the harm. So our first goal to help the client build a better life. It is too bad that these lines of communication between lawyers and many health care providers are broken.

I have no delusions that I can change the attitute generally, but hopefully if I maintain a committment towards building a better life for my clients then some doctors may change their attitude toward me personally.

Anyone who knows someone with a brain injury should consider visiting the conference website:

www.pcbic.org

Pacific Coast Brain Injury Conference

The Pacific Coast Brain Injury Conference is this weekend. It's one of the premiere brain injury conferences in the country. I am amazed at how diverse the audience is. I met a brain survivor from New Brunswick, health care providers from Ontario, service providers from the Okanagan and Seattle and a few other lawyers.

It seems that Ontario brain injury survivors are having a tough time. The province went to "no fault" insurance, but it seems to have created more problems for victims and only benefited the insurance companies (I don't mean to rant). An OT (occupational therapist) I talked with today said that she ALWAYS advises patients to get a lawyer involved early on. She said that more and more service providers are recognizing that lawyers are an important part of the recovery process because survivors have difficulty getting insurance companies to live up to their obligations.

www.simpsonthomas.com

Getting Started

Well, after re-branding our law firm and designing a website for it.  I decided to start my own blog. I'm still not sure what I'm going to do here, but my initial thoughts are to give a few comments on the law here for people involved in car accidents in BC.

I might also talk about some of my key professional interests. Right now I am working on a number of really sad cases where children have been struck by cars as pedestrians and have suffered brain injuries as a result of the collision. I'm not sure why this strikes such a cord with me. Perhaps it is because the child will never know who he or she could have become. Perhaps it is because it is shocking how poorly the medical and school systems deal with children with brain injuries.

Anyhow, these are my initial thoughts. We'll have to see what this blog becomes.