ICBC loses appeal of $1.5-million settlement after accident

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ICBC has lost an attempt at a new trial after a B.C. Supreme Court judge awarded an injured driver $1.5 million.

ICBC appealed to the B.C. Appeal Court on grounds the trial was unfair because of some of the lower court judge’s comments, according to a B.C. Appeal Court ruling released Monday.

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ICBC defended Lois Swanson against a civil lawsuit seeking damages for a 2018 accident in which Neil MacKinnon was rear-ended and suffered injuries, including a disorder that he said prevented him from working at his job as a civil engineering technologist, according to the ruling.

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MacKinnon’s claim for damages, including past and future wages, was supported by evidence of two medical experts, including a psychiatrist and a rehabilitation medicine expert, an economist, and testimony from family, a friend and a former supervisor at work, the ruling said.

ICBC called just one witness, a neurosurgeon with expertise in degenerative and traumatic spinal disorders.

After a seven-day trial in 2022, Supreme Court Justice Nigel Kent awarded MacKinnon $1.5 million, $1.2 million of that for loss of future earnings.

According to Kent’s ruling, if it weren’t for the accident, MacKinnon would have been happily married with two children, permanently employed, with social and family relationships, and an active lifestyle involving physical fitness, particularly hockey.

But his injuries changed that and “Mr. MacKinnon’s pain, disability and emotional suffering is profound and is likely permanent,” he wrote.

ICBC appealed not to challenge the amount of damages, “which appear to be reasonable based on the judge’s findings,” wrote Appeal Court Justice Christopher Grauer, who ruled on behalf of Justice Gregory Fitch and Justice Bruce Butler.

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ICBC’s expert witness had said MacKinnon likely did suffer whiplash and injury to his neck and back common to rear-end crashes, but they wouldn’t have “caused pronounced disability beyond a period of weeks to months at most” and “would not prevent return to work or recreational activities indefinitely.”

But Kent said he couldn’t put much weight on the ICBC doctor because his commentary was actually limited to “neurosurgical” issues, and therefore was not relevant to the claim and was “inaccurate and potentially misleading.”

In the appeal, ICBC argued the trial was unfair for four reasons, including that the trial judge asked MacKinnon’s expert and lay witnesses about new evidence, for instance, asking a doctor and MacKinnon’s wife about his shaking and twitching, even though the expert doctor hadn’t mentioned it in his report.

The appeal court justice also noted the judge “made comments before hearing (ICBC’s) case that indicated he may have prejudged the merits,” expressed “negative views” about ICBC and MacKinnon’s private health insurer, and “made comments to Mr. MacKinnon suggesting ways in which he could enhance his claim.”

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But the appeal court ruling said MacKinnon’s case was strong and ICBC’s was very weak.

While some of the the judge’s actions on their own “were problematic, these actions did not cause the trial to be unfair when viewed cumulatively in the context of the entire record,” wrote Grauer.

And “an impartial observer would not conclude otherwise,” he said in dismissing the appeal.

slazaruk@postmedia.com

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