Wherever there is money to be made, there will always be people who are looking to abuse the system. Many of you may have seen insurance scams uncovered on television and may even know or heard about someone who got “more money then they deserved” as a result of being “injured” in an accident. Kids might refer to these people as “fakers” and you might call these people liars or scam artists.

Malingering is the deliberate creation of false or exaggerated symptoms for external gain. It is most often alleged by defence counsel and insurance companies in cases of soft tissue injury, whiplash, back injury, psychological injury and chronic pain cases. As a society we are skeptical of what we can not see and since there is rarely any visual evidence of physical injury in these cases, unlike an x-ray broken bone, we tend to question the legitimacy of the injured person’s complaints. Unfortunately, these injuries are also easier to fake or exaggerate the effect and those individuals who abuse the system make it much more difficult for those with legitimate problems.

The media often adds to the problem, when it reports cases without the crucial facts. For example, lets take the headline “Woman gets $2.9 million for hot coffee”. Sound ridiculous? Imagine this: you pull through the drive through with your 79-year-old grandmother. She wants a cup of coffee. You’re the driver. You take the cup and hand it to your grandmother. You pull over as she wants to add cream and sugar (now you know why they do it for you). As she lifts the lid off the cup, the entire contents spills all over her lap and is absorbed by her sweat pants. The coffee is not hot, it’s scalding! The sweat pants hold the scalding liquid against her skin causing full thickness burns to her groin, thighs, buttocks, and genital areas. She has to be hospitalized for 8 days and undergo painful skin grafting and debridement treatments. You also find out that McDonalds has received over 700 claims from people burned by its coffee in the last 10 years and has done nothing about it. Feel any different about the case? These are the facts in the famous coffee case, Liebeck v. McDonald’s. Ms. Liebeck tried to settle her case for $20,000. McDonald’s refused. The jury awarded her $200,000 less 20% for contributory negligence (partly her fault) in compensatory damages and $2.7 million in punitive damages, which is about 2 days of McDonald’s coffee sales. The award was reduced on appeal and eventually settled out of court for an undisclosed amount (see www.ledtlaw.com/files/cur78.htm). Unfortunately, headlines like the one above, create unrealistic expectations for injured plaintiffs and incentive for malingerers.

As opposed to individuals faking injury altogether, what we are more likely to encounter, are those people who have been legitimately injured in an accident, but have a tendency to exaggerate their symptoms and try to prolong their recovery with the hope that it will result in a larger settlement. While we assume malingering is motivated by money, it can also be motivated by drugs, avoiding work, or gaining attention or sympathy. This phenomenon has been studied by the insurance industry, psychologists and psychiatrists in great detail.

To detect malingering, the experts are usually looking for a discrepancy between the symptoms claimed and objective findings (things the doctor can see or feel). However, one of the problems with allegations of malingering is that the signs of malingering can also be signs of psychiatric illness.
To avoid allegations of malingering, you should:

Cooperate with your physician and treatment providers

Avoid doctor hopping (if possible, see the same doctor throughout your claim)

Be pleasant. Do not act hostile or irritable with people involved in your case

Follow prescribed treatment

Be completely honest about your symptoms

Do not exaggerate symptoms you have

Do not report false symptoms

Be thorough in your reporting to your physician. Do not be vague or evasive

Do not act excessively needy and demand large amounts of attention

Return to work when recommended by your physician

If you are out of work, but are capable of working (even part-time), make a diligent effort to find employment and keep a record of your efforts

Try to avoid being preoccupied with your claim.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

If you have been injured on the job you may be wondering about suing your employer, co-worker, the manufacturer of the equipment involved or some other person or entity involved in causing the injury. In most cases, you will not be able to sue your employer, co-worker or any other “employer” or “worker” as defined by the Workers Compensation Act.

Starting in 1917, the Workmen’s Compensation Board of British Columbia was created. Employees gave up their right to sue and employers agreed to fund a no fault insurance system for those injured or killed on the job. Today the organization is known as WorkSafeBC and it administers the Workers Compensation Act and Regulations, including the Occupational Health and Safety Regulation. As a result, if you suffer an injury, including psychological injury, illness or disease, which arises out of and in the course of employment, generally speaking your only source of compensation will be through WorkSafeBC.

However, there are some injuries that are not covered under WorkSafeBC and there are some injuries where you can choose to either claim compensation through WorkSafeBC or sue a third party. The following is a list of some of the types of injuries that occur on the job where you may be able to sue:

Motor vehicle accident

Product liability (i.e. defective equipment)

Slip and fall not on employer premises (i.e. private residence)

Psychological injury or mental stress (particularly where there is no accompanying physical injury, the injury is not due to an acute reaction to an event at work, or where the injury relates to a decision made by your employer to change the terms of your employment, disciplinary measures or termination of your employment)

Injury resulting from intoxication or other substance impairment

Horseplay, where your conduct was a substantial deviation from the course of employment

Assault

Injury occurring at an educational or training institute

Sexual harassment and

Any injury that does not “arise out of and in the course of employment”.

As the situations where you can and should sue for injuries occurring on the job are unique, it is a good idea to seek legal advise before taking further action.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

“It’s the most wonderful time of year” and as the lyrics of the Christmas classic go on to say “There’ll be parties for hosting, marshmallows for toasting and caroling out in the snow.” While I am not aware of any lawsuits involving marshmallows or caroling (could be interesting), there are lawsuits related to hosting parties. In the legal world, these lawsuits are known as social host liability cases. So if you are hosting a party this holiday season, one question that may cross your mind is what, if any responsibility do I have to ensure that my guests drink responsibly?

The issue of private social host liability was discussed by the Supreme Court of Canada in a 2006 decision called Childs v. Desormeaux. In this case, a guest at a New Year’s party consumed approximately 12 beer. When he was leaving the party one of the hosts asked him “Are you okay, brother?” to which he replied “No problem.” He got behind the wheel with two passengers and caused a head on collision resulting in one person dead and five seriously injured. The injured parties sued the driver and the hosts of the New Year’s party. Mothers Against Drunk Driving (MADD Canada) and the Insurance Bureau of Canada also became involved in the lawsuit.

One of the key issues looked at by the Court in the Childs case was that the hosts did not assume control over the supply of alcohol (it was a BYOB – bring your own booze party). They also did not assume control over the service of alcohol. The only alcohol provided by the hosts was a small amount of champagne given to everyone for a toast at midnight. There was also no evidence that anyone served alcohol to the driver when he was visibly impaired or that he appeared intoxicated when leaving the party. Ultimately, the claim against the hosts was dismissed.

The Childs case confirms that as the host of a private party (i.e. house party), you do not have a legal duty to monitor your guests’ alcohol consumption. Further, you do not have a legal duty to ensure that your guests are not drinking and driving unless:

the guest is clearly intoxicated, you are aware they plan to drive and you do nothing to try and stop the guest from driving

you have a paternalistic relationship with your guest (i.e. teacher-student, parent-child) or

you have conducted yourself in such a way that you have created or increased the risk that your guests will cause harm to others. For example: if you supply your guests with excessive amounts of alcohol and encourage them to consume to a point where it would be unsafe to drive, you will likely find yourself in a position where you will be liable if any of those guests cause harm to themselves or others.

The Childs decision would suggest that you are better off to host the party as BYOB (Bring Your Own Booze) and let your guests serve themselves. Interestingly, the BC Liquorstores website:

BC Liquor Stores

offers a responsible host checklist which recommends serving the drinks yourself or designating a bartender instead of having an open bar. The logic of course being that serving should reduce alcohol consumption. If this can be accomplished, it will reduce the likelihood of liability. If service is not going to reduce consumption, serving puts you in control of that consumption and hence a greater likelihood that you could be held liable for any harm that may be caused by an intoxicated guest. Also, it should go without saying you can not serve alcohol to minors. You would likely be held liable for any harm that may be caused by an intoxicated minor.

It is important to note that the duties and responsibilities of a private social host are distinct from those of a commercial social host (including special occasion licenses), which are regulated by the Liquor Control and Licensing Act. Commercial alcohol providers do have a duty to monitor alcohol consumption and prevent you from drinking and driving. Commercial alcohol providers have been held liable to members of the public who are injured as a result of drinking and driving by a guest (see Stewart v. Pettie, [1995] 1 S.C.R. 131(S.C.C.)).

Please drink responsibly.

Wishing everyone a safe and happy holiday season.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

There are several questions that personal injury lawyers get asked over and over again. This month's column sets out the top three questions I get asked with respect to car accidents.

FAQ #1 – ICBC was paying for my physiotherapy/massage therapy/chiropractic treatments and now they have cut me off, are they allowed to do that?

Answer: It depends on why they are cutting you off. ICBC is required to pay for all reasonable expenses incurred by you as a result of your injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis (orthopedic appliance or apparatus). ICBC is not required to pay for more than 12 physiotherapy treatments unless, before the additional treatment is given, ICBC’s medical advisor or your medical practitioner certifies to ICBC in writing that the treatment is necessary. ICBC can also terminate your Accident Benefits if they request you attend a medical examination and you refuse. While Massage Therapy is not specifically included in the Regulation, the case law confirms that it is included in physical therapy.

Bottom line: if the treatment is reasonable and necessary and there is sufficient evidence to support that conclusion, ICBC is required to continue paying.

FAQ #2 – I have been told the other driver has no insurance, can I still make a personal injury claim?

Answer: Yes. Under the Insurance (Vehicle) Act, there is coverage up to $200,000 for BC residents who have been injured in a motor vehicle accident by an uninsured driver or a hit-and-run driver. If ICBC settles the claim with you or they are required to pay a judgment they will pursue the amount paid out from the uninsured driver (assuming they can identify the other driver).

FAQ #3 – My vehicle can be repaired but I believe that it is no longer worth the same amount as it was before the accident, am I entitled to the difference in value?

Answer: It depends on the facts. The case law states that it can not be assumed that every vehicle that is in an accident and repaired is worth less than it was before the accident. As a result, in order to be compensated for the alleged difference in value (also called accelerated depreciation), you must be able to prove that: 1) your vehicle is worth less than it was before the accident and 2) the reason for the decrease in value is due to the accident (see Squire v. ICBC (1990) 44 BCLR (2d) 65 (CA)).

Have a personal injury question you want answered? Send me an email kgrenier@doakshirreff.com or give me a call at 250.979.2512. Comments or suggestions for future articles are always welcome.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.