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.