Anatomy of a Liability Trial - Part 1

In order to recover any money from a car accident in BC, your have to prove that the other driver was at fault for the accident.  Sometimes it is obvious and sometimes it can be downright contentious.  Even with 8 eyewitnesses, figuring out what happened can be surprisingly elusive.

The devil, they say, is in the details.  When I first became involved in this particular case, I did a thorough review of the evidence.  There were 2-3 witness statements from 8 witnesses.  Not all of the witnesses said the same thing between statements and some gave very opposite evidence.  

The police did, in my view, a poor job.  They took statements but failed to collect complete or even meaningful information at the scene.

Complicating matters, the private investigator we retained on this file was, in my view, incompetent.  He appeared to have had a story in his head of how this accident happened and his drawings did not match the words in the statements. He failed to obtain complete information.

I was brought into this case about 4 months before trial.  

To unpack this tangled mess, I made an imaginary intersection on my wall at work and used post-it notes to represent cars.  I included key information on the post-it notes and kept reviewing the statements until I knew every version and inconsistency by heart.  The whole process resembled a scene from good legal drama on TV.

The reality of what happened was closer to a good legal drama than reality for a lawyer most days (which to be honest is really quite boring most of the time).  In a moment of staring at my post-it note intersection, I developed profound clarity of what happened and how we were going to win this case.  It hit me like a hammer.  I knew what I could prove.  I knew the gaps in my evidence that I needed to tie off.  I knew exactly the path forward and I knew how to get there.

Part 2 - learn more about the details of this case

Embarking on yet another trial

Well, I have three judgements still outstanding for trials I completed for clients in October 2012, January 14th and 28th, 2013.  Fortunately the quick Court of Appeal decision in Li v. Newson upholding, for the most part, a decision of a jury in a 2011 trial or I would be awaiting 4 decisions. If I do not get a judgement soon, by the second week of March I could be waiting on 6 judgements!!!

With a week since my last trial, I am right back at it again for another trial starting later today.

I have to admit that such a trial schedule is demanding on my staff.  I have to thank my paralegals who handle the management of issues on files with such skill and thoughtfulness that I can solve a seemingly impossible amount of problems with little effort.  There is an incredible power that comes from working so closely with people that they know your response before you even have to say a word. Even more powerful is when you say the word, the response is half drafted before you even open your mouth or put pen to paper.  That is the character of a quality team and that is the character that defines my McComb Witten team.

I also want to commend the "A desk" legal assistants who have been labouring to put together back to back to back to back trials.  As a lawyer, we expect to have to work evenings and weekends when necessary.  I went into work this holiday long weekend and saw so many people stepping up to make things happen if felt like a regular work day.  That level of commitment is not typically expected of legal assistants, but is there in droves with our team.

Our "B desk" personnel are less experienced but eager to help in any way possible.  I've long heard that you can train skills but not attitude and with our current group of B desk staff we have an abundance of good attitude.  It makes it easy to invest in people when the people are quality people and so invested in the team.

Team is the ability for the sum to be greater than its parts.  Team is what we have at Mccomb Witten right now.  Without the hard work from my team, I would be sinking not swimming.

Thank you to all of my team mates at McComb Witten.  When the results come in, and they will come in, any success for our clients is owned by the whole team.  There is an energy at Mccomb Witten and that energy is infectious.  There is not a doubt in my mind that the spring of 2013 is going to define McComb Witten for years to come.

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.

Embarking on another trial

Well, I do not yet have reasons from my last trial and I am about to commence yet another trial, which is scheduled to start tomorrow morning.  

It is always interesting on the night before the start of any trial.  Mentally, I am tying off loose ends.  Making sure that I have learned lessens from past experience and executed on that knowledge.  Making sure that I am leaving as little as possible to chance.  Given that this weekend trial preparation coincided with NFL play off games, I cannot help but think that it must be how the head coach of a football team feels before a game.

Personally, I like to pay a lot of attention to my game plan.  However, just like a football game is played on the field, a trial occurs in a courtroom and it is a venue where unexpected things can occur.

When I was in my early 20s, I recall an older friend of my reciting to me:

Luck is simply preparation meeting opportunity!

Another win for the McComb Witten trial team

In October 2012 the McComb Witten trial team of Etienne Orr-Ewing and Meghan Neathway put together a solid case for a wonderful young woman.  Recently, Justice Voith published his reasons and our client was ecstatic with the results.

Link to the great McComb Witten trial result

Congratulation to our client.  It takes tremendous courage for an injured person to take a case to trial.  You are going up against the best lawyers that ICBC can bring to the table.  ICBC has seemingly infinite resources to scour your life to try to make you look dishonest or like you are hiding something.  The tables seem slanted in ICBC's favour, because if they lose it is just the drop in the bucket of a billion dollar insurance company.  If you lose, then it means that your entire claim might be lost or even worse...you might be left owing money to ICBC.  So, it takes courage.  Courage in your conviction.  Courage to trust your lawyers to help you tell your story. Courage to know that when put on the stand you will know how to respond when you are getting grilled by the ICBC lawyer.

Having a trial team that knows how to get results and knows how to put a case together for trial is essential in giving you the courage to take your case to trial.  

The reality is that somewhere between 1-4% of cases go to trial.  You probably do not want to go to trial! So you might ask, "Why is it so important that I have a great trial team?" The answer to that question is found in my last post.  The value of your injury claim is whatever the insurance company is prepared to give you or your alternative to a negotiated settlement which is trial.  Having a great trial team helps you with both.  The more the insurance company knows, fears, and respects your lawyer, the more they are going to offer you ahead of trial and the more likely you are going to be successful if you actually do go to trial.

If you found this post because you have recently been injured and are looking for a lawyer, then you are in luck.  ICBC seems to be a broken company (see my earlier post on the subject).  For some reason, they seem to be avoiding early settlements and pushing injured people further and further through the litigation process.  More and more cases are going to trial.  Lawyers, whether at our firm or others (if you can find a good one), are doing more and more trials.  Getting better and more efficient at running cases to court.  Trial is often described as a war and your soldiers are getting battle hardened!

The reality is that by the time your case has worked its way through the system, ICBC will have smartened up its ways and you will have a lawyer on your side that has earned the privilege of respect from ICBC by getting results in the courtroom.

How much is your ICBC claim worth?

I have this conversation with all my clients at some point.  Over the years I have found it useful to step back and look at the big picture.  I now give the big picture perspective to all my clients before I get into the details of their particular case.

Here is the way I see it.

Your injury claim is different from your injuries.  Your injuries are based in reality and are what you are going through.  Your injury claim is an asset; just like it is a liability for the insurance company.

The value of the asset is basically what the insurance company is prepared to give you for your asset or your alternative to a negotiated settlement...in British Columbia that is trial.

Regardless of whether it is the insurance company or a trial judge, the asset is valued is based on the evidence on your file.  If there is no evidence, then neither the insurance company nor the trial judge is going to put money towards that part of your asset (injury claim).

At this stage I usually interject with an anecdote:

I have represented a number of women who were injured in a car accident during their pregnancy.  A number of the women have gone on to have a successful, but a premature birth.  In my mind and in my client's mind the premature birth was caused by the accident.  I have however talked with numerous specialist (even a running partner when I was training for a marathon) who have explained that there are just too many potential causes of a premature birth that they would not be prepared to give an opinion for my client.

Without the proof, how could the insurance company or a judge put any money towards that aspect of the injury claim.

So, your subjective experience of what your claim is worth based on how much you suffered is a very, very poor measure of what your injury claim is worth.

More Big Changes at ICBC

For those of you not following the news, a rather scathing report was published this summer on ICBC.  The CEO has been replaced with an acting CEO and there have been many changes in upper management at ICBC, including a change in the position of Vice President of Claims.

Recently ICBC announced that it was continuing to restructure. They have just finished over 200 terminations.  

Link to latest ICBC announcement

Without doubt many good people who have been working hard are now looking for a new position.  For clients of mine the change, in my view, is a change that will hopefully take ICBC in a better direction.

About 4-5 years ago, ICBC appeared to take a much more aggressive approach to claims.  The change in direction ICBC was humorously labelled"Operation Robe-up!" by lawyers (at trial in British Columbia lawyers wear formal robes).  As part of this change of direction, ICBC seemed to take authority for settling files out of the hands of file adjusters.  Often decisions were made several managers up from the ground.  More cases went to trial.  Sometimes individuals won big awards; sometimes ICBC won big and individuals lost big.

ICBC's approach has had a big impact on our profession.  In the past newly called lawyers lamented that they never get into trial.  Now there is a whole new generation of litigators that are getting better at their craft.

In October 2012, our firm had 5 trials scheduled in one week...when push came to shove 4 of them went ahead (but 2 had to be moved back to accommodate the judges).  

If you have found this blog because you have had a ICBC claim and are looking for a lawyer, then make sure to ask your perspective lawyer if they go to trial...even if you do not want to go to trial.  Having a lawyer adept at navigating a file through a trial and doing it regularly is both a sword and a shield for clients.

McComb Witten wins yet another trial

My colleague Meghan Neathway has shown her prowess in the courtroom this year.  In the first 6 months of 2012, she has ran 3 trials including 2 that we scheduled to be back to back.  She has also assisted with drafting the factum (the written legal argument) for an appeal of a jury award last year.  In all three trials and the case involving the appeal, the court awarded significantly more to our client that ICBC was offering before the trial.

Some of the cases that Ms. Neathway took to trial are significant and some involve minor claims.  What you need when you are looking for a lawyer for a car accident in Vancouver or an ICBC claim is someone who passionately believes in the law and knows how to get results - whether through negotiation or at trial.

Congratulations to Meghan on her recent string of success - in the courtroom and settlements on other files that result from that success in court!

Big Changes at ICBC

The news has been full of big changes at ICBC.  With a new acting CEO and a new vice-president of Claims, Bryan Jarvis,those of us representing people injured in car accidents in Vancouver or BC can certainly hope that ICBC may be taking a less adversarial approach to claims management.

Regardless of any philosophical changes at ICBC, it certainly is good to hear that management and the union have tentatively agreed to terms of a new collective bargaining agreement.  Regardless how injured people feel about how they are being treated by ICBC, I am of the view that there are a lot of good people working at ICBC who are trying to do a good job and deserve a fair contract.

Good to hear that there is finally some labour peace at ICBC.  Let's get them to talk to the NHL!!! 

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.

Yet 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.

Jeff Witten as 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!!!

Great new feature added to my blog

I am happy to add a new piece to my blog that my readers should find interesting and helpful.


At McComb Witten we are always looking for innovative ways to deliver quality service to our clients.  In order to better explain what we do here at McComb Witten and to give people a feel for our personality, Jeff Witten has prepared a few videos.


The videos cover a range of topics but are useful for anybody with an ICBC claim or a person in a car accident looking for a Vancouver personal injury lawyer.


Check out the videos on the McComb Witten video channel on the right or on the link below.


McComb Witten video

BC Government introduces sweeping family law changes

Many of my readers and clients with ICBC claims have a keen interest in issues in Family Law. I am happy to introduce a guest blogger Monique Shebbeare, to provide some important insight into the upcoming changes to the BC Family Law Act.

My followers know that I have already recommended Monique as a great option if you are separating, want to split the family assets and sort out custody/access issues reasonably but are running into a few glitches.   

Basically, if you think you are trying to be reasonable and think your former spouse is trying to be reasonable, but you are still having trouble getting things sorted out - then Monique is the person you should call to protect your rights without turning the divorce into an all out war.

By Monique Shebbeare, Heritage Law

Bill 16, the new BC Family Law Act, which will bring broad changes to BC’s family law landscape, has been passed by the BC government. The government estimates it will take 12 to 18 months to implement the law.

Some of the highlights of new Family Law Act are:

·         Children: The best interests of the child will be the only consideration in cases involving children. The divisive language of “custody and access” is abandoned in favour of more neutral language of “parenting time”, “parenting arrangements” and “parental responsibilities”. Parents who lived with the child after he or she was born are the child’s guardians unless the court orders or the parties agree otherwise. A court can appoint a person other than a parent as guardian. Only a guardian can have parenting time and parenting responsibilities, but a person who is not a guardian can have “contact”. Remedies and tools are provided to make sure that parents actually receive and follow through on parenting time they are granted. A process and guidelines are created to deal with a parent’s desire to relocate with children.

·         Out of court dispute resolution: Mediation, agreements, parenting coordination and arbitration are favoured over the courts. Complete disclosure will be required in all cases. Courts will have the power to refer parties to counseling and mediation and to appoint a parenting coordinator to work with the family on implementation of agreements and orders.

·         Child and spousal support: Parents will have the primary duty to pay child support, followed by stepparents and then also by other guardians. Children who have voluntarily left parental care under age 19 may not be entitled to child support. The definition of spouse for spousal support is expanded to included unmarried couples who have lived together for less than two years if they have a child together. For spousal support, a court can consider conduct which causes or prolongs need or affects the ability to pay.

·         Property division: Property brought by a spouse into the relationship, inheritances, gifts and certain kinds of court awards will be excluded from property division (as is the case in many other provinces) – but the parties will share the increase in value of these during the relationship. Family property, which is assets acquired during the relationship and owned at separation, are presumed to be divided equally. The court can divide excluded assets or change the division of family assets only if it is significantly unfair not to.

·         Debts: The courts will be able to divide family debts (incurred during the relationship or after separation to maintain family property), and the presumption is equal sharing.

·         Common law couples: Unmarried couples who have lived together for more than two years will have access to the same property division regime as married couples. (Note: effectively immediately, section 120.1 of the existing Family Relations Act, which operated as a disincentive for common law couples to make cohabitation agreements, has been immediately repealed).

·         Family violence: A new “protection order” is created which will be enforceable by the police. Courts can take family violence into account as part of the best interests of the child when determining parenting arrangements.

·         Assisted Reproduction: For the first time in BC, the law will provide rules for determining parentage of children born with the assistance of sperm, egg and embryo donors and with surrogates.

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.  The  neurosurgeon readily agreed that most disc herniations do not require surgery and heal on their own.  He also agreed that some of the expected symptoms of a disc herniation include numbness, tingling, weakness, and pain radiating down the arm and into the shoulder, headaches and pain radiating up and down from the injury sight


I then took the doctor through my client's clinical records from the family doctor one entry at a time starting from 3 years before the accident.  "Doctor, there is nothing in this entry to suggest to you that my client has a disc herniation that is actively causing symptoms?"  Again and again for each entry.


At the entry immediately before the car accident, the doctor volunteered, "Well, the family doctor's records are not the only records that are important.  I saw something in the chiropractor's records."


I graciously accepted this little gift.  


Q  So, then it is important to look at the various treatment providers to get a true medical picture?
A  Absolutely.
Q  And that would include treatment providers such as chiropractors, massage therapists and physiotherapist, right?
A  Definitely.


I then confirmed that the doctor had copies of the records of the chiropractor, physio, and massage therapist.   I took the doctor through the clinical entries of the chiropractor and physio - entry by entry as I did with the family doctor - stopping at the entry before the accident.  
I then took the doctor through the records of the massage therapist.


Q Doctor, you will agree with me that if my client had a disc herniation 15 years earlier, that you are not aware of any indication that it was actively causing symptoms in the three years prior to the accident?
A It would appear so.


I then took the doctor to the entry in the massage therapy records one day after the accident.  My client reported numbness, tingling, pain shooting down her arm and headaches.


Q  Doctor, you will agree with me that the accident caused these symptoms.
A  Yes.
Q  Doctor, these are the same symptoms that she has consistently been reporting since the accident?
A  It would appear so.
Q  And these symptoms, the are the ones you suggest were caused by the accident 15 years earlier.
A  That is right.
Q  And, in fact these symptoms ARE caused by the accident.
A  Yes, definitely.
Q  And to the extent that your report says otherwise, you now agree that the report is incorrect and that the accident caused the disc herniation.
A  Yes, that is true.


Goal 2 - getting the doctor to reverse his opinion on causation - accomplished


Goal 3 - confirming my client is disabled


Half the table is set for this third goal by this point in the cross-examination.


Look for Part IV to see how to turn the ICBC doctor into an asset for your client by using cross-examination. 

Family law 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.


Monique Shebbeare is a lawyer at Heritage Law and gives legal advice on wills, estate planning and out-of-court family law issues.  Monique has a solid legal background.  On the estate planning side, she advises and assists clients with wills, powers of attorney, trusts, blended family estate planning, donor and surrogacy agreements, marriage and cohabitation agreements, obtaining probate, and administering and distributing estates.  


What I personally like about Monique's style and skill set as a Vancouver family law lawyer is that she combines compassion with strong legal analysis to help clients by giving practical advice for their situation.  She focuses on non-litigated separations and divorces.  I, personally, like this as it keeps family members focused on working through the issues.


Looking for a good Vancouver family law lawyer or help with estate planning, contact Monique.  Here is her contact info and bio:


Monique Shebbeare's bio


Angelique Poutissou practices primarily in the areas of estate litigation and planning.  She is the only lawyer I know of that practices in the area of committeeship applications.  This is an area that  is of key importance to lawyers, like myself, working with severely brain injured clients.  She is also a lawyer anybody who is in charge of caring for elderly parents should keep in mind.


Angelique Poutissou's bio   

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.

ICBC doctor's appointments - Do I have to go?

As a Vancouver personal injury lawyer, I regularly get asked whether you have to go to an appointment that ICBC sets up.  The question is straightforward, the answer is not!

ICBC is entitled to some medical evidence if you are looking for some of the "no fault" benefits.  A report for that purpose may or may not count towards the medical evidence that the defendant (through ICBC) is entitled to in the Tort claim.

Once a lawsuit is started, there is a big different between a first assessment and a subsequent assessment.  Sometimes an injured person has to go to multiple ICBC doctors.  Other times, ICBC is just trying to send a person to a different doctor to unfairly bolster their case or get a new opinion.

In Dillon v. Montgomery, 2011 BCSC 1417, the ICBC appointed lawyer for the defendant sent the injured person (the plaintiff) to an orthopaedic surgeon for an assessment.  The defendant's lawyer then wanted to send the plaintiff to a neurologist.

The Plaintiff resisted saying that they provided an opinion from a neurologist confirming that the plaintiff has some neurological symptoms, but these symptoms were NOT related to the accident.

The Master (essentially a judge of interlocutory or pre-trial matters) agreed with the plaintiff.  Looking at the defendants arguments, it appeared that they wanted the opinion to confirm that the symptoms were NOT related.  Given the evidence of the plaintiff's expert, they would only need this assessment to confirm a negative.  Doesn't make much sense does it?  Well the Master didn't think so either.

Often these arguments are thinly veiled attempts at getting new opinions.  Could be that ICBC didn't like the opinion they had and wanted to used this opportunity to get some new evidence.

Cross-examination of a neurosurgeon - Part 2

The devil, they say, is in the details and it is very true for cross-examination.   

The video deposition started as expected.  The lawyer for ICBC introduced the neurosurgeon with his very lofty credentials.  He then went over the doctor's report with him.  The neurosurgeon confirmed that he did not think that my client's symptoms were caused by the accident rather from a disc protrusion following two accidents some 15 years earlier.  He confirmed that my client did not require surgery.  He was then turned over to me.

As a Vancouver personal injury lawyer I have a few tools in my toolbox to deal with witnesses.  The most used tool is a stick.  Most often the better tool is the carrot.  Some witnesses require the stick, but I suspect we use the stick because it makes us feel like a lawyer (the sad reality is that most lawyers feel like paper pushers rather than lawyers).  We are not immune from popular culture and good T.V. shows.  The reality is that one can be much more cagey whilst being kind than mean.  I, thankfully, resisted my urge to be mean and took a pleasant tone with the ICBC doctor.

I had three goals I wanted to accomplish with my cross-examination: get the doctor to comment that vehicle impact is not critical (I had a fender bender as you will recall), get the doctor to change his opinion on causation, and get the doctor to confirm that my client was disabled from her injuries - no small task I set for myself!!!

I started by summarizing what I understood the doctor's analysis to be.  He listened carefully and agreed that he basically was saying that the earlier accidents caused the disc protrusion and that the accident that I represented my client for was not responsible for her symptoms.  I confirmed that he came to the later conclusion because the first record of complaints in the family doctor's records was some 4 months post-accident.

Goal 1 - impact not important

I then asked the doctor what speed the vehicles were going in the first accident 15 years ago. He, of course, did not know.  I asked about direction...vehicle damage.  He didn't know. He didn't know.  I cycled through the same questions for the second accident 15 years ago with, predictably, the same results.

I then confirmed that vehicle speed, direction and damage were all not important for determining the cause of a disc protrusion.  He happily agreed.  I suggested that all that was really important was to look at the medical records.  He, again, graciously agreed.

Goal 1 - accomplished

Goal 2 - Getting the doctor to fold on causation - ducks lined up and ready for knocking down

Leave a comment if you think you know how the ducks are lined up by this stage.

Look for Cross-examination of a Neurosurgeon Part 3 on a future post to see how this cross-examination played out.