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.

BC Supreme Court – Articles Cited in Expert Reports Are Not Evidence

September 22nd, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that articles cited in expert reports are not evidence and outlining how these documents can be used at trial.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs, who are suing the government of BC arguing certain Provincial health-care laws are unconstitutional, sought to introduce articles and texts cited by their expert witnesses into evidence.

Mr. Justice Steeves provided the following concise and helpful statement addressing the limits and procedural use of such documents:

11]         It follows that I do not agree that the plaintiffs can go as far as they would like to go and put in articles through their experts on examination in chief. I adopt the approach in the Sopinka text and add the following procedural requirements:

1.     An article or text cited by an expert in his or her report may be identified by the expert and then entered as an exhibit for identification. I emphasize that the article or text has to be cited, but the expert report does not have to specifically state that the expert is adopting the article or text.

2.     As part of the examination in chief of the expert he or she may be taken to specific parts of the article or text. These will be read into the record.

3.     The expert can use the excerpts to clarify terminology or ambiguities in his or her report or use the excerpts to make the report more understandable, and the expert can adopt the excerpts as his or her own. I acknowledge that, to be more understandable, different reports may require different applications of this approach.

4.     The article or text itself will remain an exhibit for identification and is not evidence.

5.     Any hearsay issues will be decided as set out in the Mazur judgment.

6.     The expert is not permitted to give a new opinion or adopt an opinion other than the one in his or her report.

7.     If it is not clear, the expert may be cross-examined on any part of his or her evidence.

 


$150,000 Non-Pecuniary Damage Assessment in Polytrauma Injury Case

September 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in a vehicle collision.

In today’s case (Chappell v. Loyie) the Plaintiff was injured when his motorcycle was struck by the Defendants vehicle in an intersection collision.  He suffered numerous injuries, some of which resolved others which caused ongoing disability.  In assessing non-pecuniary damages at $150,000 Madam Justice Fisher provided the following reasons:

[176]     I find that Mr. Chappell sustained the following injuries as a result of the accident:

a)       injuries to his feet and ankles which caused severe pain initially and substantially resolved within about four months;

b)       soft tissue injuries to the back and neck with chronic, ongoing pain that affects his level of activity and his ability to cope with his other injuries;

c)       carpal tunnel syndrome in the left hand, which caused significant pain over time but resolved within a month following carpal tunnel release surgery in November 2012, with an 80% risk that he would have developed carpal tunnel in his left hand in any event;

d)       headaches that are cervicogenic in origin and have become chronic partly as a result of his long term use of pain medication;

e)       injury to the previously reconstructed ACL in the left knee, which caused it to eventually dissolve and require replacement and which continues to cause intermittent pain, but with a 20% risk of damage to the reconstructed ACL regardless of the accident;

f)        injury to the rotator cuff in the right shoulder that eventually required surgical repair, which has substantially resolved but continues to cause intermittent pain, but with a 20% risk of re-injury in any event and an 80% risk of problems in the right shoulder due to degenerative problems, some of which are now present;

g)       a mild TBI that did not cause significant symptoms and resolved within about two months following the accident; and

h)       severe depression and anxiety that developed over a year after the accident, is ongoing, and may improve with concentrated treatment.

[200]     Mr. Chappell’s multiple injuries are serious and cumulative, the prognosis for a pain-free existence is poor, and their effect on Mr. Chappell’s life has been profound. His colleagues and friends who testified described him before the accident as a positive, active “larger than life” individual who was “happier building a fence for you than watching a movie”. He was known for his strength. Tab Buckner, one of his oldest friends who worked with him in construction, said he was very physical, proficient and could think outside the box. Steve Raby, one of his fellow firefighters, described Mr. Chappell as “one of the biggest, strongest people” he knew, a happy person who liked to socialize, and “not a complaining kind of guy”. Todd Roberts, another firefighter and hunting friend, said that Mr. Chappell organized all the gear for their hunting trips and all he had to do was “jump in the truck”. Mr. Chappell’s wife, Cheryl Ann, testified about the deep happiness and intimacy they had found together, the joys and challenges of blending their families and their common interests in home renovation projects. She said that her husband loved his work as a firefighter, could do “pretty much anything” when it came to renovations, and was very particular about his lawn and garden.

[201]     The picture painted by these witnesses of Mr. Chappell after the accident stands in stark contrast to these descriptions. They all said that Mr. Chappell is no longer active, doing either construction work, hunting or social activities, and the most he does is to take an advisory role in projects. Many thought he was coping with what they perceived as pain and fatigue. Todd Roberts described his activity level as “next to none” and his personality as drastically changed, “he just seems his mind is elsewhere”. Tab Buckner noticed that Mr. Chappell had difficulty getting in and out of chairs, could barely move at times, seemed angry with the world, and was not coping well with his wife and stepsons. Anthony Tanner, his oldest stepson, observed that the relationship between his mother and Mr. Chappell had become more strained. Mrs. Chappell described the course of Mr. Chappell’s injuries and recovery since the accident, his obvious pain, his growing frustration and then sadness at his lack of progress, and the personal difficulties that developed between them as he became more irritable, impatient and argumentative. There is no longer any intimacy in their relationship, which is obviously a very difficult issue for both of them.

[202]     I found all of these witnesses to be honest and straightforward, but Mrs. Chappell was quite exceptional. Throughout her testimony she was responsive and respectful, and while of course she was supportive of her husband, she did not overstate the positive or understate the negative. Her evidence was entirely consistent with Mr. Chappell’s evidence about the nature and quality of their lives together and what has happened to their relationship since the accident.

[203]     All of this evidence is consistent with how I have already described Mr. Chappell: after five years of dealing with his physical injuries, he is a broken man, emotionally isolated, suffering in constant pain, ashamed of his physical limitations and his inability to cope, and desperate for solutions.

[204]     Moreover, by June 2012, Mr. Chappell was forced to give up his career as Captain of Suppression and abandon his ultimate goal of becoming Battalion Chief of Suppression. This loss of a job he loved caused him great personal distress. As I indicated above, while there was a measureable risk that he would have had to do this at some point in any event, this change occurred much sooner than it would have absent the accident. I will come back to this when I address future loss of capacity.

[205]     In these circumstances, I award of $150,000 for non-pecuniary damages, after taking into account the extent of the risks outlined above that some of Mr. Chappell’s conditions would have occurred regardless of the accident.


“Cut and Paste Affidavit” Derails Defence Medical Exam Application

September 20th, 2016

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a defence request for an independent medical assessment of a Plaintiff in part due to the use of a “cut and paste affidavit”.

In the recent case (Mirzai-Sheshjavani v. Ho) the Plaintiff was involved in a collision and sued for damages.  As trial neared the Plaintiff served expert reports and the Defendant applied to compel the Plaintiff to attend an independent medical exam to obtain a responsive report.  The request was denied with the Court criticizing the supporting materials.  In dismissing the application Master Baker provided the following reasons:

[3]             The global response addressed the — I think the term used in some of the email was the “institutional litigant” approach of the defence. I agree in large measure with that. I agree just from the materials before me. Mr. Jiwa says there are too many of these applications, “these applications” being applications for defence medical examinations brought very proximate to the trial, often with short leave. He is correct.  There is no utility in my getting into an anecdotal review, but it has become quite common in chambers to have that application. Yes, short leave is typically given. Yes, the applications are heard, and I guess, yes, sometimes the applications are successful, perhaps often, I do not know, but it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject. His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.

[4]             It is not for me to tell them how to do their job, but that might explain a few things, but in the particular case before me, the affidavit in support — one of the affidavits in support — is by Dr. Hummel indicating why he needs to do a physical examination of the plaintiff and there is just absolutely no question that this is a cut-and-paste affidavit. It is taken literally verbatim from the affidavit of — I think it is — Dr. Reebye in one of the other cases cited to me – down to the punctuation.

[5]             The interesting paragraph, paragraph 9(d), where he says, “I understand that the plaintiff has been assessed by Dr. Heran and Dr. Kazemi…” — well, that was not verbatim, different doctors — “…whose reports I have not reviewed extensively, but sufficiently to determine that they noted the plaintiff’s complaints of neck, back, and shoulders causing headaches,” et cetera, on down to, “To properly assess his claimed injuries, I need to review the plaintiff’s history, accident information provided, and conduct a physical examination.”  These are all conclusions. He does not say, “Well, I notice that Dr. Heran did this or did not do this, performed this test which I think as a professional is inappropriate for the symptoms suggested”; no, nothing, he just simply says, “I need to look at this person,” and when he says that, he essentially, in my respectful view, says, “I need to do the same things Dr. Heran did,” but he just says that without giving us any reasons and, without reasons, there is no evidence, there is no requirement proven, and the application fails, but I also agree with Mr. Jiwa’s submissions that there is not a surprise here.

[6]             Yes, I can see the defence’s point, but I can also see the other elements and aspects of Dr. Kazemi’s report which, as Mr. Jiwa points out, says, among other things, he needs to be assessed for neurosurgery. Well, maybe you can say that is different than being assessed by an orthopedic surgeon, I do not know, but it is obvious that Dr. Kazemi certainly considered that a full understanding of the plaintiff’s circumstances would require further inquiry by another specialist and, in fact, the very specialist or physician of the same specialty that he considered who happens to be Dr. Heran. So no surprise there.

[7]             The application is dismissed.


“Outlandish” Uncorroborated Injury Claims Rejected

September 15th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.

In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:

9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.

[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.


No Negligence Where Customer Trips on Overlapping Mats

September 12th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a trip and fall lawsuit where a customer fell on over-lapping mats at a grocery store.

In the recent case (Biason v. Loblaws, Inc) the Plaintiff tripped and fell injuring herself while she walked on overlapping floor mats.  She argued that it was negligent for the store to have these mats overlap each other.  The Court noted that counsel could not point to other cases addressing such a fact pattern but ultimately found there was no negligence.  In dismissing the claim Madam Justice Baker provided the following reasons:

[29]         Mr. Patton testified that he was unaware of any previous incident involving a customer tripping over overlapped mats.  Although there was no direct evidence about the depth of the mats, from the description given, and the appearance of the mats on the recording, they were neither deep nor “plushy”.  The front end of the third mat that overlapped a portion of the rear end of the second mat was not wrinkled or buckled or folded back or lifting up in any unusual fashion.  Part of one mat was simply lying on top of part of another mat.

[30]         There is no evidence that there had been previous accidents due to overlapping mats – the evidence is to the contrary.  There is no evidence that the overlapping of mats was a recognized hazard in the industry.  Other customers had been walking over the mats without incident on the day that Ms. Biason tripped and fell…

[35]         I have read and considered all the other authorities provided by counsel.  Taking the authorities and all of the evidence into account, I have concluded that the plaintiff has failed to establish, on the balance of probabilities, that the placement of the mats in the defendant’s store constituted a failure on the part of the defendant to take reasonable care to ensure that the premises were reasonably safe.  The defendant placed the mats in the entryway to protect customers from a readily apparent and recognizable risk – the risk of slips and fall due to wet floors.  I am of the view that it was not reasonably foreseeable that a customer would fail to lift his or her feet sufficiently while walking to avoid tripping on the edge of one of the mats, even if those mats were slightly overlapping.

[36]         Having found no breach of the standard of care, and therefore no liability on the defendant’s part, Ms. Biason’s action must be dismissed.


Plaintiff “Antics” During Cross Examination Undermine Injury Claim

September 9th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting substantial aspects of a personal injury claim due in part to concerns about plaintiff credibility.

In today’s  case (Siddall v. Bencherif) the Plaintiff was injured in 2 separate collisions that the Defendants accepted fault for.  Much of her claim was rejected at trial where the presiding judge raised concerns about her credibility and “antics” while testifying.  In concluding that “the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her” Mr. Justice G.C. Weatherill provided the following reasons:

[183]     A plaintiff who accurately describes his or her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable. 

[184]     Regrettably, that did not occur in this case.   The plaintiff was not particularly forthcoming during her evidence-in-chief.  Significant aspects of her story were not revealed until cross-examination at which point she was evasive and took great pains to minimize the history of her pre-Collisions physical and emotional issues.  Despite insisting that her memory was “good”, on several occasions she had to be taken to her relatively recent examination for discovery transcripts before she was prepared to recall her previous evidence.  She had difficulty agreeing that her income tax returns reflected her actual income because she could not remember whether she had worked more than what they reflected.  Although the details of her many pre-Collisions psychological and psychiatric issues were set out in voluminous historical clinical records, including the answers to questionnaires in the plaintiff’s own handwriting, she was either unable to recall, or unwilling to admit to them.  She was also unable to recall significant portions of the clinical history set out in the various expert reports filed in this action that had been provided by the plaintiff herself. 

[185]     When clinical records or other documents were put to the plaintiff that contradicted her evidence, she insisted that the documents were likely in error or that she had been misinterpreted or misunderstood. 

[186]     The poor quality of the plaintiff’s memory at times when it suited her is at odds with her obvious high level of intelligence.

[187]     During her cross-examination, the plaintiff became increasingly evasive, argumentative and adversarial.  She often launched into lengthy, rambling answers that were replete with speculation and devoid of factual foundation.  She repeatedly played down her pre-Collisions symptoms as minor and inconsequential and emphasized her post-Collisions symptoms as new and debilitating.

[188]     Although the plaintiff appeared to have no difficulty reviewing documents and answering questions during her direct examination, she requested a recess early in her cross-examination, complaining of having difficulty extending her arms to read a one page document due to pain in her arms and shoulders.  However, she did not indicate any further difficulty with her arms during the remainder of her lengthy cross-examination, interrupted as it was by other witnesses over four days.  Indeed, throughout her cross-examination she frequently used her arms to gesture during her answers, as people typically do when attempting to make a point.  She continually alternated between standing and sitting in the witness box, which is in noticeable contrast to Ms. Tencha’s observations during the Functional Capacity Evaluation that the plaintiff was capable of engaging in casual sitting for 1 hour and 40 minutes.

[189]     The plaintiff’s antics and demeanour during cross-examination, as well as her numerous and vehement attempts to convince the court of her ordeal, evoked the oft-quoted line from Hamlet: “the lady doth protest too much”.

[190]     I find that, overall, the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her, which I find she exaggerated.  Unfortunately, I am unable to give her evidence in that regard much weight. 

[191]     As a consequence, I have not found the opinion evidence of the medical experts of much assistance.  That is not because the experts are lacking in the necessary experience and expertise in their respective fields.  Indeed, they are all highly qualified.  Rather, it is because medical experts necessarily take a patient’s complaints at face value and then offer an opinion based on those complaints.  Here too they relied for their respective opinions to a significant degree on what they were told by the plaintiff without the benefit, as the court had, of a thorough and lengthy cross-examination of the plaintiff during which her self-reports and evidence generally were tested.

[192]     In contrast to the plaintiff, Sean gave his evidence in a down-to-earth and forthright fashion.  He was clear, candid, animated, articulate and passionate about his testimony.  I find that his evidence was credible and generally reliable.


$135,000 Non-Pecuniary Assessment for Ruptured Breast Implant, Chronic Physical and Psychological Injuries

September 9th, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry assessing damages for numerous injuries sustained by a pedestrian struck by a vehicle.

In today’s case (Starchuk v. Hannig) the Plaintiff was a customer standing in a store “when a vehicle driven by the defendant, Helmutt Hannig, crashed into it. Ms. Starchuk was pushed into the wall of the deli, breaking the drywall.”

The Plaintiff suffered a host of psychological and physical injuries including a breast implant capsular tear requiring surgical repair.  In assessing non-pecuniary damages at $135,000 Mr. Madam Justice Brown made the following findings:

[101]     In summary, I am satisfied that as a result of the motor vehicle accident of May 13, 2013, Ms. Starchuk has suffered soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. I accept that Ms. Starchuk:

1.       will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;

2.       would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and

3.       has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her…

[103]     I have considered the cases provided to me by each of the parties. It is trite to state that no two injuries and no two plaintiffs are the same (Boyd v. Harris, 2004 BCCA 146 at para. 42). Considering the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in my view the appropriate award for damages for Ms. Starchuk’s pain and suffering is $135,000.


Failure to Mitigate Cuts Pain and Suffering Award in Half

September 8th, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, cutting a Plaintiff’s non-pecuniary damage award in half due a failure to mitigate loss.

In today’s case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s non-pecuniary assessment of $140,000 was reduced by 50%.  In reaching this result Mr. Justice Verhoeven provided the following reasons:

[116]     She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse. ..

[121]     In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially.  She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.

[122]     I doubt that the plaintiff has engaged in physical exercise to the extent recommended. Physical exercise has been consistently recommended to her. In examination in chief she testified that she followed the exercise advice of Dr. Chu and of her physiotherapist to the greatest extent possible.  However on cross examination she was vague and evasive about the extent to which she had followed this advice. She testified that she tried to do what was recommended but could not recall exactly. Currently she participates in pilates at a local facility 3 to 4 times per week. Her husband candidly acknowledged that she was not doing much exercise other than attending pilates. However the evidence concerning exercise does not allow me to derive sufficiently firm conclusions that would be necessary to conclude that the defendant has met its burden to establish a failure to mitigate in this respect.

[123]      A question is whether the plaintiff’s refusal to attempt to return to work and her reluctance to accept and failure to obtain full psychiatric treatment is rooted in her accident injuries, such that a deduction for failure to mitigate would not be appropriate. However there is no basis for such a finding in the medical or other evidence. The plaintiff is highly educated and intelligent. There is some evidence that she has experienced some cognitive difficulties but these are not severe. She displayed considerable intelligence in giving her evidence, especially in describing her previous work. I do not accept that the plaintiff was impaired in her rational decision-making capacity in relation to her career and her treatment…

[216]     Based on all of the circumstances of this case, including consideration of the cases cited to me my both counsel, in my view a fair and reasonable award for non-pecuniary loss is $140,000

[217]     I reduce this by 50% to $70,000 on the basis of failure to mitigate loss.


“One of Those Rare Instances in Which the Left-Turning Servient Driver is not at Fault”

September 6th, 2016

There is a mistaken belief by some that when a collision occurs at an intersection between a left turning motorist and a vehicle proceeding straight through the intersection that fault will rest with the turning vehicle.  This is often, but not always, the case.

Reasons for judgement were released today by the the BC Supreme Court, New Westminster Registry, finding a left turning vehicle faultless for such a crash due to excessive Defendant speed.

In today’s case (Theiss v. Shorter) the Plaintiff was attempting a left hand turn on an amber light when she miscalculated the on-coming Defendant’s speed and a collision occurred.  The Defendant was travelling at approximately double the posted speed limit and due to this the Court concluded fault should rest entirely with him.  In reaching this conclusion Madam Justice Baker provided the following reasons:

[45]         I found the opinions in Mr. Dinn’s report, reinforced by his response to rigorous cross-examination and some questions from the Court, to be logical, reasonable and persuasive, and the assumptions on which he based his opinions to be supported by the evidence.  I conclude that Mr. Shorter was travelling at an excessive rate of speed as he approached the intersection − probably a speed in excess of 100 kph and possibly as great as 110 kph − more than twice the posted speed limit.

[46]         Ms. Theiss commenced her left turn when the defendant’s vehicle − had it not been been travelling at an excessive speed − was sufficiently far from the intersection that it did not pose a hazard.  She could not, in my view, have anticipated that the approaching vehicle was travelling at twice the posted speed limit.  As such, and given that she was well into her turn when Mr. Shorter approached the intersection, he was obliged to yield to her.

[47]         Mr. Shorter knew, I conclude, that the light at Chancellor Avenue for traffic on Helmcken Road had been green almost from the time he entered Helmcken Road and should have anticipated that it would turn to amber or red before he reached the intersection.  He also knew that there was a southbound vehicle stopped at the intersection waiting to make a left turn.  He was aware there was no left turn light and that vehicles wishing to turn left often did so on an amber light.  Had he not been driving at an excessive rate of speed he could have stopped before entering the intersection, or had a greater opportunity to consider his options and to avoid the swerve to the right that was a contributing factor in the collision.

[48]         This is, in my view, one of those rare instances in which the left-turning servient driver is not at fault.  Ms. Theiss drove in a prudent and reasonable manner − stopping twice to check the distance from the intersection of the oncoming vehicle; and checking to ensure no pedestrians or cyclists were in the crosswalk. She was familiar with the intersection and able to make a reasonable estimate of when she could safely make it through the intersection before oncoming traffic reached the intersection.  She could not reasonably have predicted the highly excessive rate of speed at which I have concluded Mr. Shorter was travelling.

[49]         I find Mr. Shorter’s negligence in driving at an excessive rate of speed and failing to keep a proper look-out for left-turning vehicles to be the sole cause of the accident.


Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

September 1st, 2016

Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.

In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.

Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:

[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.