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.

Court Finds Careless Driving Admission Not Binding in Subsequent Injury Lawsuit

April 25th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a motorist faultless for a collision even though that same motorist entered a guilty plea to a charge of driving a vehicle without due care and attention.  While this is not the first noted circumstance of this occurring the Court provided helpful reasons setting out the circumstances where the prior admission will not be an abuse of process to re-litigate.

In today’s case (Chand v. Martin) the Plaintiff was operating a vehicle struck by a train.  He was injured and a passenger in his vehicle was killed.  The Plaintiff was charged with “driving a vehicle without due care and attention” and plead guilty (meaning an admission that he did so beyond a reasonable doubt).

The Plaintiff then sued a host of parties including the train conductor alleging they were at fault for the incident.  The Court found that the train conductor was indeed negligent for the incident noting that he proceeded into the train crossing when the signal lights were not working and this created an unreasonable risk of harm.

The Defendants argued that the Plaintiff was also partly at fault and cannot escape this given the previous admission of careless driving.  Madam Justice Russell disagreed and in allowing the issue to be re-litigated despite the previous guilty plea noted as follows:

[86]        The key decision regarding the effect of a guilty plea in a subsequent proceeding involving the same facts is Toronto (City) v. CUPE Local 79, 2003 SCC 63. In that case, the Supreme Court of Canada was considering whether the grievance of a dismissal following a conviction for sexual assault amounted to an abuse of process. The Court provided the following comments at paras. 51-53:

[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

[Emphasis added]

[87]        I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]        Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.


$90,000 Non-Pecuniary Assessment for Chronic Neck Injury With Headaches

April 19th, 2017

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing non-pecuniary damages of $90,000 for a long standing neck injury with associated headaches.

In today’s case (Willett v. Rose) the Plaintiff was involved in a 2010 collision.  At trial, some 7 years later, the Plaintiff continued to suffer from neck pain with associated headaches.  In assessing non-pecuniary damages at $90,000 Mr. Justice Smith provided the following reasons:

[42]         In summary, the evidence is undisputed that the plaintiff’s headaches, including migraine headaches, are more frequent since the accident. The events with which those headaches were associated before the accident–monthly menstrual periods–no longer occur. I also accept the plaintiff’s evidence that her headaches are more severe and usually associated with neck pain. All of the medical evidence acknowledges the mechanism by which neck pain can evolve into headaches, including migraines and confirms the existence of objective signs of neck injury.

[43]         All of that evidence leads to the conclusion that, on the balance of probabilities, there is a causal link between the plaintiff’s neck pain and stiffness and her migraines. I find the neck pain and stiffness to have been solely caused by the accident.

[44]          As for the migraines, the governing principle is that stated by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458: causation is established if an injury was caused or contributed to by the accident. Given the plaintiff’s long history of migraines, it may well be that some other factor is also playing a role in their onset, but I find that the injuries the plaintiff suffered in the accident are at least a major contributing cause of the migraines she now has. Or, to use the language of the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, “but for” accident, the plaintiff’s migraines would not be as frequent or severe as they now are.

[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future…

[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.


Damages for Surrogacy Fees Awarded in BC Injury Claim

April 18th, 2017

In what I believe is the first case of its kind in British Columbia, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages for surrogacy fees for future potential pregnancies after a collision compromised the Plaintiff’s ability to safely carry a child.

In today’s case (Wilhelmson v. Dumma) the Plaintiff was “the sole survivor of a horrendous, high-speed, head-on collision that killed three other people”.  The collision caused profound injuries leading to permanent disability.  Included in the aftermath of this collision was an inability of the Plaintiff to safely carry a child.  In awarding damages for surrogacy fees should the Plaintiff wish to have a child by such means Madam Justice Sharma provided the following reasons:

[375]     Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child — the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.

[376]     I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.

[377]     The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox, [2000] A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):

I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned…..I prefer … to assess quantum for infertility discretely, by reference to the circumstances of each case.

[378]     The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.

[379]     Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.


Proven Cases of ICBC Fraud Almost Non Existent

April 13th, 2017

Insurance Companies often talk about the high cost of fraud and ever rising claim rates.  These discussions are often abstract or accompanied with large numbers.  When you look behind the data there is often little to substantiate the numbers.

This pattern seems to be the case with ICBC’s claims that fraud costs policy holders $600 million per year.  The reality, however, is there is no data to substantiate this.

Recently ICBC revealed, pursuant to an information request, the number of successful convictions against fraudsters.  The numbers are negligible.

Richard McCandless, a self described “retired senior BC government public servant” made an information request for the number of fraud charges laid and the number of resulting convictions.  ICBC replied and the data revealed that there are very few successful prosecutions and the trend, if anything, is moving downward.

McCandless Screenshot

Fraud is real and insurers and ratepayers have to pay the price.  Insurers overstating fraud, however, is equally real and the public is entitled to be aware that proven fraudulent claims make up a small percentage of what insurers would have us believe.

Mr. McCandless’ full article can be found here.


Court Denies Defendant Costs to Prevent “Pyrrhic Victory” for Plaintiff

April 11th, 2017

Reasons for judgement were released today demonstrating the Court’s discretion for costs following trial where formal settlement offers were exchanged.

In today’s case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendant presented a formal settlement offer of $185,000.  The Court noted that “some of the plaintiff’s initial negotiating positions were clearly inflated” but ultimately it was reasonable for the Plaintiff to refuse the Defendant’s offer and proceed to trial in the face of medical evidence supporting her alleged claim of chronic pain and related disability.

The decision proved costly with a jury awarding the Plaintiff damages of $37,800.  The Defendant asked to be awarded post offer costs and to strip the Plaintiff of her post offer costs.  The Court refused noting the Plaintiff is of modest means and having her pay Defendant costs would reduce the verdict to a Pyrric victory.  In awarding the Plaintiff costs Madam Justice Power provided the following reasons:

[36]         It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.  Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

[37]         As a result, although not determinative, the relative financial circumstances of the plaintiff and the defendant insurer are a consideration that I have taken into account.

[38]         I am not persuaded that in these circumstances the court should exercise the discretion afforded to it under Rule 9-1(4) and (5).  Having considered all of the relevant factors, I find that the plaintiff is entitled to her costs at Scale B and disbursements, including the cost of this application.  The defendants’ application is dismissed.


Video Surveillance Helps Deflate Personal Injury Claim

April 6th, 2017

In the world of personal injury lawsuits, video surveillance usually amounts to hours of filming benign activity entirely consistent with a Plaintiff’s known injuries.  Occasionally, however, video helps capture images inconsistent with a Plaintiff’s presentation.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with such an outcome.

In today’s case (Ma v. Haniak) the Plaintiff was involved in three collisions and sued for damages.  Fault was admitted by the Defendant motorists.  The Plaintiff was self-represented and sought approximately $1.4 million in damages.  The Court largely rejected the Plaintiff’s claims and awarded a small fraction of her sought damages.  In reaching the conclusion that the Plaintiff’s claim was exaggerated Mr. Justice Armstrong noted as follows when reviewing video surveillance evidence:

[114]     The defendants tendered video surveillance of Ms. Ma from 2007, 2009 and 2011.

[115]     On September 21, 2007, Ms. Ma was observed working with her brother in their newspaper delivery business. Mr. Maung is seen loading the car with the newspapers. She appears to move without any restrictions in her range of movement and appears to be flexible and capable of moving bundles of newspapers. Although she shows no overt signs of pain, it is not possible to ascertain her actual condition from the video.

[116]     Ms. Ma was able to crouch down, reach in and manually rearrange paper in her car and move several paper bundles.

[117]     Mr. Maung appears physically capable of moving bundles of newspapers to the vehicle from nearby pallets.

[118]     Between October 29, 2009 and November 2, 2009, Ms. Ma was observed and filmed by a private investigator. She was seen driving, entering and exiting her Mazda MPV without any apparent difficulty. Her movements seemed unrestricted and flexible; she carried a cane but did not use the cane to stabilize her walking or support herself.

[119]     In August 2011, more than one-and-a-half years after MVA #3, Ms. Ma was observed and filmed by a private investigator; the recording lasts between 30 and 40 minutes of film.

[120]     At Ms. Ma’s examination for discovery, she testified that she suffered pain when carrying things. She said she avoided carrying items and used the basket on her walker when necessary.

[121]     Nevertheless, on August 9, 2011 Ms. Ma was attending an appointment with Dr. Magrega and used her walker when entering and leaving the office. Later that day she is seen walking and carrying items at a McDonald’s restaurant without any apparent limitation or need for assistance. On that day Ms. Ma is seen exiting her vehicle and walking towards a restaurant with a normal gait, moving at a normal speed and without the benefit of a walker or wheelchair. She collects food from a counter and carries a tray with a drink on top and a separate bag to a table inside the restaurant; she then walks outside to her car carrying a drink and a bag for a person in the vehicle. Ms. Ma’s comportment in this video is significantly different than her comportment at trial. At trial, she used a walker to move in the room and to the witness box. She did not demonstrate the marked flexibility and physical movement that appears on the video.

[122]     What is observed on the video demonstrates significantly less restricted movement than she described in her testimony.

[123]     She testified that when using the sliding doors to enter her van, she suffered severe pain and relied on family members and a cane to open and close the doors when possible. On the date of the video, she is seen freely opening and closing the doors, leaning in and delivering food to others who had not come into the restaurant. The video of the plaintiff was dramatically different from her self-described limitations.

[124]     She testified that if she bumped into a person while being out and about, she would experience excruciating pain; she is seen to be bumped while in the restaurant lineup and shows no evidence of excruciating pain.

[125]     On the video, she was clearly functioning without evidence of pain or limitation in her movement. She walked briskly and without the use of a cane or walker. Her facial expression showed no evidence of pain or discomfort.

[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

[127]     Her only explanation for the apparent differences between her testimony and the video presentation was that she was “tricked” at the discovery. She also said that the limitations in her ability to move or walk distances without a walker do not become apparent until she has been active for approximately ten minutes.

[315]     I agree with the defence that the plaintiff’s claim concerning the level of pain she has experienced after the accidents is wholly inconsistent with her appearance at trial and on the surveillance videos. Although the August 2011 video was taken almost five years before trial, the plaintiff’s examination for discovery evidence, which was given within two weeks of the video, is telling. It contradicted the plaintiff’s appearance in the video surveillance films. Her testimony and use of a walker at trial was consistent with her evidence at the examination for discovery but equally inconsistent with observations of her in the various surveillance videos. From these inconsistencies, I make an adverse finding about Ms. Ma’s credibility.


$110,000 Non Pecuniary Assessment For Chronic Pain and Major Depressive Disorder

April 3rd, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in three separate collisions.

In today’s case (Parhar v. Clarke) the Plaintiff was injured in three collisions that the Defendants accepted blame for.  She suffered chronic physical and psychological injuries as a result including thoracic outlet syndrome, chronic pain,  major depression and anxiety.  Her prognosis for further improvement was guarded.  In assessing non-pecuniary damages at $110,000 Mr. Justice Pearlman provided the following reasons:

[215]     Ms. Parhar was 27 years old at the time of the first accident and 35 at the time of trial.

[216]     The injuries she suffered in the accidents include injuries to the muscles of her neck, shoulder girdle and back with attendant muscle spasm, low back pain, thoracic outlet syndrome, persistent headaches, TMJ pain and dysfunction and soft tissue injuries to her knees and right hip.

[217]     In addition, as a result of the defendants’ negligence, the plaintiff sustained a chronic pain disorder, a major depressive disorder, a generalized anxiety disorder and PTSD.

[218]     Although there has been some improvement in the plaintiff’s condition, Ms. Parhar’s prognosis is guarded in light of the persistence of her symptoms of pain and her psychological conditions.

[219]     Further psychological counselling would assist Ms. Parhar in coping with chronic pain and managing the functions of daily living. Exercise and conditioning will probably produce further improvements to her symptoms of neck, shoulder and back pain, and may also alleviate her headaches. However, after eight years of chronic pain, it is unlikely the plaintiff will make a full recovery and probable that she will experience flares of her back and neck pain, anxiety and depressive moods indefinitely.

[227]     Taking into account the Stapley v. Hejslet factors, all of the authorities cited by counsel, the risk that the plaintiff would have suffered a recurrence of depression in any event of the accidents, and all of Ms. Parhar’s particular circumstances, I would assess her damages for pain and suffering and loss of amenities and enjoyment of life in the amount of $110,000…


Judge Compels Plaintiff to Sign “Consent Form” In Court Ordered Doctor Exam

March 31st, 2017

The law is split on whether a litigant can be forced to sign a consent form when attending a court ordered medico-legal appointment.  Today reasons for judgement were published providing further judicial commentary on the topic finding such an order is permissible.

In today’s case (Wee v. Fowler) the Plaintiff was involved in a vehicle collision and sued for damages.  In the course of the lawsuit an order was made that the Plaintiff attend a defence medical exam. When the Plaintiff attended the doctor required a consent form to be signed.  The Plaintiff refused and the exam did not take place.

The Defendant obtained a new order requiring attendance and signing the form.  In making this order Madam Justice Harris provided the following reasons:

[37]         The only remaining issue is whether the form of consent which Dr. Hirsch proposed is reasonable. While it is not strictly necessary for me to address this issue in light of my conclusions above, in the circumstances of this case, I consider it appropriate to do so.

[38]         The plaintiff objects to the form on the basis that:

                           i.          it requires the plaintiff to agree that Dr. Hirsch is independent of the parties;

                          ii.          that she is not in a doctor/patient relationship with him;

                        iii.          that she received an explanation as to the nature of the assessment; and

                        iv.          that she was there voluntarily or pursuant to a court order arising from Rule 7‑6(1).

[39]         The form of consent proposed by Dr. Hirsch was as follows:

Consent to Independent Medical Examination

I, ________________, date of birth ___________________ consent to participate in an independent medical examination (“IME”) conducted by Dr. Gabriel Hirsch. I am participating in the IME voluntarily or pursuant to Court Order arising from Rule 7-6(1) of the British Columbia Supreme Court Civil Rules.

I understand that Dr. Hirsh is not my treating physician and that no doctor/patient relationship arises from the IME. I also understand that Dr. Hirsch is independent of the parties involved in this matter and is not an employee of the party requesting the IME.

I acknowledge that I have received an explanation as to the nature of the assessment that will be undertaken in the IME and I authorize Dr. Hirsch to perform an assessment that includes a medical history, physical examination, review of medical imaging, tests, medical records, reports, and/or employment and school records related to my condition.

I understand that the assessment may be terminated if Dr. Hirsch determines that it is in the interest of my health and safety. I understand that I may choose to stop the assessment at any time.

I acknowledge that subsequent to the IME and pursuant to Rule 7-6(1) of the British Columbia Supreme Court Civil Rules, Dr. Hirsch may provide a medical-legal report to the referring source for the purposes of litigation. I release Dr. Hirsch and his employees from any claims which may arise as a result of the release of the above information. I am aware that the right to distribution of the report lies with the referring source and not Dr. Hirsch.

In signing this document I consent to take participate in this IME.

Dated this _________ day of _____________, 2016.

 

Signature of Evaluee: _________________________

Print Name: _________________________________

Signature of Witness: _________________________

Print Name: _________________________________

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

[44]         Accordingly, I find that the consent form proposed by Dr. Hirsch to be reasonable.


Court Dismisses Injury Claim in “Slow-Moving Parking Lot Accident”

March 29th, 2017

I have spent much time documenting judicial treatment of the so-called ‘low velocity impact’ defence.  In short, courts routinely accept motorists can be injured in low velocity collisions.  Despite this, courts occasionally dismiss an injury claim involving modest forces.  Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In today’s case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.

The Plaintiff alleged injury.  The Court rejected this noting that “ I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury“.

In dismissing her injury claim Mr. Justice Brown provided the following reasons:

[53]         I will now discuss the evidence and state my findings:

1.       The Chevrolet was stationary at impact.

2.       The defendant, Mr. Raveendran, started the Honda. He took his foot off the brake. The tires slowly completed their circumference, two to three turns of its tires, before the right side of the Honda contacted the left driver-side door of the Chevrolet.

3.       The vehicles were at a slight angle on impact.

4.       The point of impact was not bumper to bumper. There is no indication the solid substructures of the vehicles were involved. The visible damage was not deeply intrusive into the bodies of the vehicles; a fairly shallow dent of the surface of the driver’s door of the Chevrolet and some surface scraping of the right rear panel and leading edge of the bumper on the Honda is all that is noteworthy.

5.       The plaintiff relied on the fact that the cost of repairing the Honda was $1,200 and the Chevrolet, written off, $1,500. Considering the cost of vehicle repairs generally, these figures do not denote significant impacts, rather, more likely, in my opinion, the costs of materials and labour for prepping, taping, sanding, painting, et cetera. There is no indication of parts replacement or significant structural damage requiring repair.

6.       There is no evidence either vehicle was moved from its path or static position, or moved about by the impact.

7.       The plaintiff complained only of a jolt, the nature of which she had difficulty explaining, but she denied her body came into contact with the interior of the car or that she was moved about.

8.       The video surveillance segments, viewed in congress with the photographs of the vehicle damages, which the court viewed in the range of 10 times, convey a strong impression of a very minor impact, most unlikely to cause injuries, let alone ones requiring a recovery period of three to four years.

9.       The plaintiff had recovered from the injuries related to her previous accident.

10.     The plaintiff reported immediate onset of symptoms, but instead of reporting to Dr. Kaler’s office about 100 feet away, or to the hospital, drove to the ICBC Claim Centre to report the Accident.

11.     The plaintiff submits the fact she attended physiotherapy sessions after the birth of her child argues against invented symptoms. But as I mentioned earlier, there is no evidence showing for what reasons she attended the clinics, the nature of the treatments, the symptoms reported or observations made. Dr. Kaler had clinically noted concerns of morbid obesity; and, as the plaintiff granted, giving birth to a child can cause physical problems. I cannot find a link between the need for physiotherapy and the alleged trauma.

12.     As for depression, Dr. Kaler’s evidence shows the plaintiff earlier had been concerned about becoming pregnant again. The basis for linking this minor accident to alleged depression, say, stemming from a chronic pain syndrome, is not present. There is no diagnosis of chronic pain, for example, to generate a logical medical link between physical trauma and depression usually seen the cases.

13.     It is not plausible, and there is no persuasive medical legal evidence to show, that it would take the plaintiff three years to recover from trauma allegedly caused by the very modest forces involved in this parking accident.

[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[56]         In Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:

[18]      I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

[19]      An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.


Indivisible Injury Principle Applied Where Injuries Aggravated in Limitation Barred Event

March 28th, 2017

Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.

In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions.  The first in 2011.  She sued the at fault motorist who admitted liability.  She was involved in a second collision in 2014.  She was a passenger in her husband’s vehicle.  He was at fault for the second crash but she chose not to sue and the limitation period to do so expired.  The second crash aggravated the injuries from the first.

The Defendant argued that the Plaintiff’s damages must be reduced to the extent that the second crash aggravated them.  The Court disagreed noting the principle of indivisible injury allows the Plaintiff to fully recover damages from the first Defendant who is then burdened to seek indemnification from other contributing tortfeasors.  In applying the indivisible injury principle in the Plaintiff’s favour Mr. Justice Bracken provided the following reasons:

[117]     In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident.  She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.

[118]     In Bradley v. Groves, 2010 BCCA 361 at paras. 32 – 34, the court said:

[32]      There can be no question that Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]      The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]      That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[119]     In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident.  He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible.  The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act.  Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.

[120]     At para.60, Burnyeat J. stated:

[60]      I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[121]     In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.

[122]     I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu.  There was no right of action in British Columbia against the person liable for the second accident.  In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.

[123]     In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

[124]     It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband.  That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff. 

[125]     The plaintiff obviously knew of her right to commence an action from the time of the accident.  The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident.  I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.