ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

ICBC’s “Meat Chart” Crashes In the BC Supreme Court

February 14th, 2019

Earlier this year ICBC instructed its staff to ignore the law when valuing cases and instead make offers based on an internal injury ‘meat chart’.  The result is cases not settling and going to trial.

The first wave of these has now hit the courts and the judiciary seems none too impressed by ICBC and their ‘institutional’ tactics.

In reasons for judgment released today (Tsai v. Murdoch) ICBC was harshly criticized.  The Plaintiff was injured and sought to settle her case.  ICBC declined and made a low settlement offer subject to their ‘meat chart’ guidelines. The plaintiff sensibly rejected the offer and went to trial where damages were assessed under the law and resulted in an award greater than what she was prepared to settle for.

The Court went on to award the plaintiff double costs for ICBC’s tactics and criticized their new approach.  In doing so Madam Justice Sharma provided the following reasons:

[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. I was informed the defendant had made a settlement offer, but withdrew it for “institutional” reasons. Whatever “institutional” reasons are they do not protect in any way a litigant from bearing the consequences of its choices in the litigation.  Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.


What Dumpster Fire? ICBC Spokesman Says Corporation in Fine Financial Shape

February 14th, 2019

Remember the Dumpster Fire?  The powerful image painted by BC’s Attorney General used to persuade the public that it is necessary for the government to strip the rights of British Columbians in order to keep ICBC healthy?  Turns out ICBC themselves say they are in fine financial shape and can meet all of their existing obligations without concern.

ICBC has Billions in assets.  Billions.  In addition to this, according to ICBC Spokesman Adam Grossman, ICBC is cash solvent and collects enough in premiums and investment income to meet their obligations.

The following quote was attributed to Grossman by the Vancouver Sun’s Rob Shaw:

““We disagree with Mr. McCandless’ position — ICBC is not insolvent….In addition to the reserves and portfolio referenced above, we are still generating sufficient cash flows from premium revenue and investment income, allowing us to meet our current obligations — this is the key point and we are not, therefore, being backstopped by government.

Government has implemented a host of legal changes stripping the rights of British Columbians to douse the so-called dumpster fire.  ICBC has not realized any savings yet from these changes as they largely have not kicked in yet.  If ICBC can meet all current obligations why the “minor” injury caps?  Why the discrimination to people suffering psychological disability?  Why the forced tribunal and stripped judicial rights?  Why the limit on expert witnesses plaintiffs can use when appearing in court? If there was no dumpster fire to put out it looks like British Columbians just got hosed.

 


$125,000 Non-Pecuniary Assessment for “Complex” Psychological Injuries With Pain

February 13th, 2019

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for the victim of a hit and run collision.

In today’s case (Crozier v. ICBC) the Plaintiff was injured in a 2013 collision caused by an unidentified motorist.  ICBC admitted statutory liability for the crash.  The Plaintiff suffered both physical and psychiatric injuries which were partially disabling and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $125,000 Mr. Justice Saunders provided the following reasons:

[99]         The physical and psychological injuries Ms. Eros suffered include pain in the neck, back, shoulders, rib and chest; headache; dizziness and nausea; post-traumatic stress disorder, together with symptoms of depression and anxiety; fatigue, and problems with concentration and memory, either as a result of a mild traumatic brain injury (not confirmed through neuropsychological testing), or a combination of the physical and psychological/psychiatric injuries. Ms. Eros suffers from some residual headache and rib and chest pain. Fatigue remains a concern. She has significant chronic pain in the thoracic spine, and her psychological injuries continue. She is significantly disabled from working fully in her chosen field of massage therapy, and from engaging in physical labour of the type she did with SCRD. Her physical activity is limited. She can only do light housework.

[100]     I also consider the following factors as particularly influential in the damages award. Ms. Eros avoids driving where possible. She is not the joyful, outgoing person she used to be. Her self-identity as a strong and fearless person is gone. She lost the chance of pursuing her relationship with Mr. Johnson. Her relationship with her mother deteriorated after the accident. She is more socially isolated.

[101]     The defendant’s suggested range of $60,000 to $80,000 for Ms. Eros’ non-pecuniary damages, and the case law submitted in support of an assessment in that range, are premised on the substantial improvement of Ms. Eros’ physical injuries within 12 months of the accident, and of the psychological injuries within 18 months. The defendant’s submissions do not come close to acknowledging the devastating psychological effects of the accident, the continuing functional limitations imposed by the plaintiff’s pain, and the complex interrelationship of the pain condition and the post-traumatic stress disorder…

[104]     I find an appropriate award of non-pecuniary damages is $125,000.


BC Caps Expert Reports in Motor Vehicle Litigation

February 11th, 2019

Update – The full text of the amended rules have been published.  These read as follows –

RULE 11-8 – EXPERTS IN VEHICLE ACTIONS
Definition
(1) In this rule, “vehicle action” means an action that includes a claim for damages for
personal injury, or death, that arises out of the use or operation of a vehicle as defined
in the Motor Vehicle Act.
Conflict
(2) This rule applies in the event of a conflict between this rule and another rule of these
Supreme Court Civil Rules, other than Rule 15-1.
Limitation on expert opinion evidence
(3) Except as provided under this rule, a party to a vehicle action may tender, at trial, only
the following as expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) expert opinion evidence of up to 3 experts;
(b) one report from each expert referred to in paragraph (a).
Additional experts and reports by consent
(4) If all the parties to a vehicle action consent,
(a) the parties may tender expert opinion evidence of one or more additional
joint experts, appointed in accordance with Rule 11-3, in excess of the limit
set out in subrule (3) (a), or
(b) a party may tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
page 3 of 5
Additional experts and reports by application
(5) On application by a party to a vehicle action, the court may do any of the following if
the court is satisfied that it would further the object of these Supreme Court Civil
Rules:
(a) provide for expert opinion evidence of one or more additional experts, in
excess of the limit set out in subrule (3) (a), by
(i) ordering the parties to appoint a joint expert in accordance with Rule
11-3, or
(ii) appointing an expert under Rule 11-5;
(b) allow the party to tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
Allowable responding reports
(6) The limits set out in subrule (3) do not apply to an expert or expert’s report, if a party
serves the expert’s report under Rule 11-6 (4) to respond to a report that was served
on the party within 126 days before the scheduled trial date.
Allowable supplementary reports
(7) The limit set out in subrule (3) (b) does not apply to a supplementary report required
under Rule 11-6 (5) or (6).
Limitation on disbursements for expert evidence
(8) In a vehicle action, only the following amounts may be allowed or awarded to a party
as disbursements for expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) the amount incurred by the party for up to 3 expert reports, whether or not
the reports were tendered at trial, provided that each report was
(i) served in accordance with these Supreme Court Civil Rules, and
(ii) prepared by a different expert;
(b) the amount incurred by the party for
(i) a report allowed under subrule (4) or (5),
(ii) a report referred to in subrule (6) or (7), or
(iii) a report prepared by an expert appointed by the court under
Rule 11-5 (1);
(c) the amount incurred by the party for an expert to give testimony at trial in
relation to a report, referred to in paragraph (a) or (b), that was prepared by
the expert.
page 4 of 5
Appointment of experts on initiative of the court
(9) Nothing in this rule prevents the court from appointing an expert on its own initiative
under Rule 11-5 (1).
Transition – application of rule
(10) Subject to subrule (11), this rule applies to all vehicle actions, whether or not a notice
of claim for the vehicle action was filed before the coming into force of this rule.
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of
claim was filed before the coming into force of this subrule:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before the
coming into force of this subrule;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before the
coming into force of this subrule.
5 Rule 15-1 is amended by adding the following subrule:
Application of Rule 11-8
(12.1) In a fast track action,
(a) Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a
reference to “one expert”, and
(b) Rule 11-8 (8) (a) is to be read as follows:
(a) the amount incurred by the party for one expert report, whether or not
the report was tendered at trial, provided that the report was served in
accordance with these Supreme Court Civil Rules; .
SCHEDULE 2
1 Rule 9-7 (7.1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is amended by
striking out “in relation to a vehicle action referred to in that rule”.
2 The heading to Rule 11-8 is repealed and the following substituted:
RULE 11-8 – EXPERT OPINION EVIDENCE ON DAMAGES FOR PERSONAL
INJURY OR DEATH .
3 Rule 11-8 (3) is amended by striking out “to a vehicle action” and substituting “in an
action”.
4 Rule 11-8 (4) is amended by striking out “to a vehicle action”.
5 Rule 11-8 (5) is amended by striking out “to a vehicle action”.
page 5 of 5
6 Rule 11-8 (8) is amended by striking out “In a vehicle action” and substituting “In an
action”.
7 Rule 11-8 (10) is repealed and the following substituted:
Transition – application of rule
(10) Subject to subrules (11) and (12), this rule applies to all actions, whether or not a
notice of claim for the action was filed before the coming into force of this rule.
8 Rule 11-8 is amended by adding the following subrule:
Transition – exceptions for existing actions, other than vehicle actions
(12) The following exceptions apply in relation to an action, other than a vehicle action, for
which a notice of claim was filed before February 1, 2020:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before
February 1, 2020;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before
February 1, 2020.

_______________________________________

Today BC’s Attorney General announced changes to the BC Supreme Court Rules which will limit how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.

While the exact wording of the changes is not yet known the BC Government provided the following details in a press release this morning:

The proposed amendments will limit the number of experts and expert reports permitted to address the issue of damages, such as wage loss, future wage loss and future care that can be used by each side of a motor vehicle dispute. Parties will be able to use one expert and report for fast-track claims (e.g., less than $100,000), and up to three experts and reports for all other claims. However, the judiciary will be able to permit additional court-appointed or joint experts at its discretion.

These amendments will come into effect immediately upon deposit for motor vehicle-related actions. They will also apply to all personal injury claims as of Feb. 1, 2020, subject to the further analysis and consultation that the ministry plans to undertake. More information will be available in the coming weeks.

I will update this article with the actual rule changes once these are published.

While the limits on experts apply equally to both sides it is worth noting that if a plaintiff fails to call treating physicians ICBC can ask the court to draw an ‘adverse inference‘.  Plaintiff’s rarely enjoy this luxury unless ICBC hires an expert and then chooses not to disclose the report generated from the assessment.  Plaintiffs will be faced with the difficult choice of deciding whether to come to court with treating doctors (who often want nothing to do with litigation) vs doctors retained for medic0-legal purposes.  Defendants will not have to struggle with such a choice.


$85,000 Non-Pecuniary Assessment For Soft Tissue Injuries with Persistent Flare Ups

January 31st, 2019

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for persistent soft tissue injuries with frequent flare ups.

In today’s case (Palmer v. Ansari-Hamedani) the Plaintiff was involved in two collisions with the Defendants accepting fault.  The first crash was relatively minor with injuries well on their way to recovery by the time of the second crash.  The second collision caused persistent soft tissue injuries which continued to the time of trial and often flared up with various activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Morellato provided the following reasons:

[86]         In conclusion, I find that Ms. Palmer’s suffered from the following symptoms in the months following the Second Accident: mental “fogginess”; nausea, dizziness, balance issues; ringing in ears, a bump on back of the head, bruising in swelling in the forearm and overwhelming nerve tenderness in the forearm.  I find that these symptoms had substantially resolved by the time she returned to full-time work at Dr. McDougall’s office in February of 2013.  Other related symptoms, however, persisted as described below.

[87]         Ms. Palmer’s soft tissue injuries to her neck and back have persisted for some time; however, I find that by the time she saw Dr. Pascoe in May of 2017, Ms. Palmer had substantially recovered from these injuries.  However, I find that she continues to suffer “flare-ups” as recognized by Dr. Pascoe in her August 2017 reporting letter.  Further, as noted above, I also accept that the flare-ups in her neck and back cause occasional headaches, some of which are migraine headaches but these are less frequent.

[88]         The evidence before me has not established, on a balance of probabilities, that Ms. Palmer suffers cognitive deficits or permanent brain damage from her Second Accident.  Nor am I satisfied that her Second Accident affected or compromised her ability to retrain or attend to further educational pursuits.

[89]         I find that while the injury to Ms. Palmer’s right shoulder and arm is not symptomatic on a daily basis, the injury has not yet resolved and continues to cause her pain and discomfort.  She suffers pain and numbness in her arm when her arm is tired or she holds her forearm and hand in flexed or extended positions.  I am also satisfied on the evidence before me that Ms. Palmer suffers flare-ups of pain in her shoulder area.

[94]         I have also considered the cases counsel have drawn my attention to as well as the related case law: see e.g.  Cleeve v. Gregerson et al, 2007 BCSC 1112 [Cleeve]; Senger v. Graham, 2018 BCSC 257; Knight v. Belton, 2010 BCSC 1305.  In this light, and having regard to the specific circumstance before me, I am of the view that an award of $85,000 is fair and reasonable.


$85,000 Non-Pecuniary Assessment For Chronic Neck Pain and Headaches

January 28th, 2019

Reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic neck pain and headaches following two vehicle collisions.

In the recent cast (McCully v. Moss) the Plaintiff was involved in two separate collisions with the Defendants accepting fault for both.  The collisions caused a neck injury with associated headaches which continued to the time of trial.  The symptoms were expected to continue and flare with heavier household and vocational duties.  In assessing non-pecuniary damages at $85,000 Madam Justice Devlin provided the following reasons:

[99]         Ms. McCully is 66 years-old and she suffers some limitation and restriction as a result of her persistent neck pain and headaches caused by the accidents. However, I do not agree that the injuries have a profound or life altering affect on Ms. McCully. I do find that she continues and will continue to experience some pain and discomfort and the medical experts confirm this. Although the medical evidence does not foreclose the possibility that she can increase her work hours or certain activity levels, I find that even where she does attempt these pre-accident activities, her injuries would increase her discomfort and pain.

[100]     While she is able to continue to work as an esthetician, she does experience discomfort if she exceeds working for a comfortable amount of time. Fortunately for her, her schedule is flexible and ultimately she is the one who will determine when she will work and for how long. While she may resort to the use of the TENS machine at the end of a long day to deal with the discomfort in her neck, she appears to be pleased to be able to continue to work for and service her clients.

[101]     I note that she has also returned to playing bridge a few times per week and has participated in a bridge tournament over the weekend albeit with the assistance of her pain medication. Participating in these bridge games is particularly important for Ms. McCully as it provides her an opportunity to engage socially. She continues to engage with her family and while she does not take her grandchildren to the pool she does babysit them at her residence. In a similar vein as Buckle, I note that Ms. McCully’s injuries restrict her from engaging in her domestic and work activities with the same energy and ability she had before the accidents. However, as I discussed earlier, despite having the chronic neck pain and headaches she continues to travel and has done so since shortly after the accidents.

[102]     In the following reasons, I will specifically address the parties’ arguments in relation to a segregated loss of housekeeping capacity damages. However, as I will re-state below, the impact of Ms. McCully’s injuries on her ability to perform household tasks informs my assessment of her non-pecuniary damages. I note also that she keeps a fairly large 2,900 sq. ft. house on a 12,000 sq. ft. lot. Overtime I find that Ms. McCully has been able to do some light housekeeping although she cannot do some of the more physically demanding tasks. Additionally, it is clear that she is more limited in performing yard maintenance.

[103]     There is no doubt that her neck pain and headaches have and will continue to have an impact on Ms. McCully in every aspect of her life to varying degrees. I am satisfied that Ms. McCully is entitled to compensation for the impact the injuries have had on her general well-being.

[104]     Having reviewed the cases provided by both parties, I assess Ms. McCully’s non-pecuniary damages at $85,000.


$140,000 Non-Pecuniary Assessment for Chronic Back and Ankle Injury

January 22nd, 2019

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back and ankle injury sustained in a vehicle collision.

In today’s case (Lensu v. Victorio) the Defendant was operating a vehicle and ran over the plaintiff’s foot as he was exiting a pakrade.  The Court found the Defendant 75% liable for the incident with the plaintiff shouldering 25% of the blame.

The incident led to chronic back and ankle difficulties with a poor prognosis.  In assessing non-pecuniary damages at $140,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[208]     Applying these factors, the plaintiff is 62 and was only in the second year of retirement when the accident occurred.  She led a physically active and independent life, including numerous outdoor and sports-related activities, as well as international travel.  These activities formed an integral part of her personal fitness regime, family life and social relationships.  She took pleasure in them.  She was an avid skier; could play ping-pong for long periods; she hiked challenging trails; rode horses; and could sit through the entirety of her granddaughter’s piano practice.  Others found it difficult to keep up with her.

[209]     The plaintiff looked forward to a retirement of high-energy output.  From her perspective, these years also presented an ideal opportunity to learn and try new things (such as sailing).  She was excited about the prospect.

[210]     There is no question that the injuries to her left ankle, foot and lower back have profoundly affected the plaintiff’s life.  She experiences daily pain; is unable to do many of the things she previously did; her mobility and endurance have been reduced; and she has decided she must sell her condominium, a place she has lived in for ten years and enjoys.  Overall, the situation has led to feelings of dependency, helplessness and decreased enjoyment in life.  There are still things she can do, including travel.  She does them and tries to persevere.  However, it is not the same.  The plaintiff’s frustration with her current situation was obvious from her testimony.  She presents as proud and stoic.  However, her physical discomfort was readily apparent from the way in which she held and moved her body while testifying.  Moreover, it was obvious to me that she genuinely misses, and longs for, her prior independence and strength.

[211]     No medical intervention is likely to alleviate the plaintiff’s condition.  The prognosis for improvement is poor.  The lifestyle the plaintiff planned for herself post-retirement is forever diminished…

[216]     Having regard to these decisions, as well as the cases referenced in Rizzolo at paras. 32–37, I consider a non-pecuniary award of $140,000 to be appropriate in the circumstances of this case.


ICBC’s Secret “Meat Chart” for Pain and Suffering and the Actual Law

January 16th, 2019

As reported last week by the Vancouver Sun, ICBC’s top brass have handed out directives to all adjusters to withdraw settlement offers on existing claims and re-assess claims not by the law but by an internal meat chart.

Details of this secret memo are slowly coming to light and it appears ICBC has created 5 different categories for non-pecuniary damage assessment.  The first three deal with soft tissue injuries, the fourth with more serious injuries and the last with what ICBC deems to be catastrophic injuries.

I have not yet had the privilege of seeing ICBC’s full memo to their adjusters (who have been instructed to keep the details secret) but sources tell me that ICBC will be valuing pain and suffering by completely artificial criteria which run contrary to well established law.  If and when full details of ICBC’s new policy are shared with me I will gladly publish them.

In the meantime, if you are being told that your claim is worth an artificially small amount based on ICBC’s internal assessment please know your rights.  It is well established that non-pecuniary damages are assessed individually on a case by case basis using the following non-exhaustive list of factors.  If ICBC is not prepared to use these you can be confident BC courts will –

a)     age of the plaintiff;

b)     nature of the injury;

c)     severity and duration of pain;

d)     disability;

e)     emotional suffering; and

f)       loss or impairment of life;

g)     impairment of family, marital and social relationships;

h)     impairment of physical and mental abilities;

i)       loss of lifestyle; and

j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).


“Standard of Perfection” Not Needed for Victims of Hit and Run Collisions

January 3rd, 2019

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identify of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act.

In today’s case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact.  The Plaintiff’s wife was in a separate vehicle nearby but did not notice the collision.  The Plaintiff drove away from the scene and did not find any other witnesses.  The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act.

ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist.  Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances.  In addressing the required standard for victims of hit and run collisions the Court noted as follows:

[62]         Overall, I find the plaintiff acted reasonably at the time of the Collision and its immediate aftermath, but was unable to obtain the required information. The driver of the SUV immediately fled the scene. The lead vehicle left quickly as well. There were no other potential witnesses in the area of the Collision, other than perhaps Mr. Ghuman’s wife, but she was unaware the Collision even occurred. In these circumstances, I think a reasonable person would believe this low-impact accident was not so obvious that others in the area would have even seen it, let alone observed details of the offending vehicle in the seconds before it fled the area.

[63]         However, as the case authorities make clear, the requirement to make all reasonable efforts to ascertain the identity of the other driver and owner is not limited to the immediate aftermath of the Collision. Mr. Ghuman must be found to have also made all reasonable efforts to ascertain the identity of the unknown driver and owner in the days and weeks that followed.

[64]         In those days and weeks, Mr. Ghuman took several steps to try and ascertain the identity of the SUV, its driver or owner.

[65]         He called police the following day and gave them all of the information he had. He also reported the Collision to ICBC the following day and followed up with the written claim form a few days later.

[66]         Within a week of the Collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the Collision occurred. He retained counsel shortly thereafter to protect his interests and within about a month of the Collision, his counsel arranged for more signs seeking witnesses to be posted around the intersection and for an advertisement seeking witnesses to run for a week in the local newspaper.

[67]         None of the above efforts generated any witnesses to the Collision or any information that might have led to the identity of the SUV, its driver and owner.

[68]         ICBC identifies two steps that Mr. Ghuman did not take in the days and weeks following the Collision as a basis for finding that Mr. Ghuman did not make all reasonable efforts. It points to Mr. Ghuman’s failure to follow up with police and his failure to canvass business in the Strawberry Hill complex for potential video recordings or records of witnesses who may have come forward to those businesses.

[69]         I agree with the observations of Justice DeWitt-Van Oosten in Rieveley that there are often other steps that a plaintiff could have taken in particular circumstances, but that s. 24(5) of the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a “plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time”: Rieveley at paras. 36-37.

[70]         Mr. Ghuman did not follow up with police following his initial call because he reasonably believed police would not investigate the Collision and/or that any investigation would be fruitless. Mr. Ghuman reported the Collision to police because he understood that the law obliged him to, but given the circumstances of the Collision and the presence of only very generic information about the SUV, Mr. Ghuman’s belief that police would not investigate or such an investigation would be fruitless is reasonable. I accept there was little benefit in following up with the Surrey RCMP in these circumstances. To do so would be highly unlikely to produce any results.

[71]         Mr. Ghuman did not check with businesses near the area for video surveillance and/or records of witnesses who may have come forward because he relied on another person, his wife, who told him that she was making some of those efforts. Not admissible for the truth that those steps were actually taken, Mr. Ghuman’s belief that some of those steps were being done does provide a reasonable explanation why he did not undertake them himself.

[72]         I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

[73]         In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

[74]         For all of these reasons, I find the plaintiff has met the onus upon him to establish that he made all reasonable efforts to ascertain the identity of the SUV’s owner and driver under s. 24(5) of the Act and that the identity of the unknown owner and driver of the SUV is not ascertainable. Accordingly, ICBC is appropriately named as the nominal defendant to this action and liability is found against ICBC.


Lawsuit Against Expert Witness Dismissed on Grounds of Witness Immunity

January 2nd, 2019

In British Columbia expert witnesses in litigation are granted a broad immunity in cases where they are alleged to be negligent or otherwise provide less than adequate services when testifying.  Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, applying this principle in dismissing a lawsuit against an expert witness.

In today’s case (Owimar v. Warnett) the Plaintiff was involved in several collisions and sued for damages.  In the course of the lawsuits the Defendants retained a physician who “examined the plaintiff three times, provided five medical reports from 2003 to 2013 and testified in court“.

The Plaintiff sued the Doctor and the defence counsel that retained him alleging “various kinds of fraud and negligence in their respective capacities as defence counsel and expert witness and claims that they substituted his lumbar spine x-ray taken in November 1996 with an x-ray that would disprove his claims of being injured in the MVAs.“.

The lawsuits were dismissed for various grounds with the Court noting that “the allegations advanced by the plaintiff are nothing more than wild speculation.“.  Additionally, one of the reasons dismissing the claim against the expert witness was the principle of witness immunity.  In triggering and applying this doctrine Madam Justice Murray provided the following comments:

[34]         With regard to Dr. McGraw I am satisfied that the doctrine of witness immunity applies. Under that doctrine witnesses are immune from civil liability. In addition as for expert witnesses the doctrine applies to anything they say in court as well as pre-trial activities including assessments and reports: P.(J.) v. Eirikson, 2015 BCSC 847 at paras. 21 and 25.

[35]         Our Court of Appeal recently confirmed that a professional witness who gives evidence in court is protected from civil action in 311165 BC Ltd v. Canada (A.G.), 2017 BCCA 196:

[50] It must be kept in mind that the immunities from suit that prevent claims based on evidence given in court and on bringing litigation are broad in order to protect the justice system. Witnesses should not be dissuaded from giving evidence or fettered in what they tell a court by the fear that an aggrieved person will sue them. Prosecutorial decisions must be allowed to be made in an atmosphere that is free from the chilling effects of potential civil liability. Access to the courts must not be impeded by leaving litigants in fear of being open to lawsuits brought in retaliation.

[36]         As a result of the witness immunity defence I am satisfied that the plaintiff’s allegations against Dr. McGraw will fail. Accordingly there is no genuine issue to be tried and the claim must be dismissed under Rule 9-6(5)(a).

[37]         In conclusion, having considered all of the evidence and all of the submissions I am satisfied that the action against the defendants must be dismissed as it offends Rule 9-5(1). In the alternative I am satisfied for the reasons above that the action against the defendants must be dismissed under Rule 9-6.