ICBC Law

Reasons for judgement were released today dismissing a defence applicaiton seeking ‘particulars of the Plaintiff’s wage loss and loss of capacity claims“.

The Plaintiff was invovled in a motor vehicle accident. A Statement of Claim was filed in BC Supreme Court suing for, amongst other things ‘loss of earnings, past and prospective, loss of income earning capacity, loss of opportunity to earn income”

A statement of Defence was filed. The Defendant then examined the Plaintiff for discovery and requested that the Plaintiff provdie ‘particulars of the wage-loss claim being advanced and loss of capacity claim”. The Plaintiff lawyer did not appear to agree to this request.

In dismissing the motion Master Baker noted that this was not truly a a request for particulars, rather this was a motion seeking evidence. The Court held that this motion should have been brought further to Rule 27 of the BC Rules of Court (the rule dealing with examinaitons for discovery) rather then pursuant to Rule 19 (the rule dealing with pleadings).

Master Baker made some interesting comments implying that such a motion may not be succesful even if brought pursuant to Rule 27 because such requests for evidence may be objectionable as being ‘too vague or speculative‘.

Do you have questions about this case or an examination for discovery that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries sustained in a 2005 Vernon car accident including $50,000 for non-pecuniary damages (pain and suffering).

The accident occurred when the Defendant pulled out of an alleyway and struck the Plaintiff’s vehicle. The crash was significant causing the Plaintiff’s 1999 Honda Civic extensive damage.

Mr. Justice Barrow summarized the Plaintiff’s injuries as follows:

I am satisfied that the plaintiff sustained a moderate soft tissue injury to her back in the motor vehicle accident. Both Dr. Coghlan and Dr. Smart diagnosed her injury as such. Further, she sustained a fracture to her sternum. That fracture likely disrupted the soft tissues in the area of her sternum as her body compensated for the boney injury. Those injuries resulted in her being entirely unable to perform the physical labours associated with the operation of the family farm for approximately six months and continued to substantially impair that ability until the farm was sold in the summer of 2006. I am satisfied that they continue to limit her function today in the sense that she is unable to lift her grandchildren and she experiences difficulty in doing other activities that she formerly enjoyed, including keeping her house, tending to her garden and sleeping. As to the future, these limitations will likely continue although they will be moderate. I am also satisfied that she would benefit from a program of physical strengthening. While I understand her reluctance to attend a gym, that would be of benefit to her. It is not the defendant’s responsibility if she chooses not to follow her physician’s advice in that regard.

In finding that $50,000 was fair for Pain and Suffering Justice Barrow noted that “(the Plaintiff) was unable to return to farming, an occupation which was a source of enjoyment and fulfillment to her. She has suffered a loss of independence in that she is unable to keep her house to the standard that she formerly had and is forced to rely on her children to do that for her”

Do you have questions about this case or an ICBC claim involving soft tissue injuries and a fractured sternum that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

ICBC claims can be very expensive to bring to trial. Typically, most of the expenses are associated with the cost of presenting medical opinion evidence. Medical opinion evidence is often required to prove that injuries are caused by an accident, to discuss reasonable treatments (addressing special damages), and to address the specific diagnosis and prognosis of car accident related injuries. Such opinions can cost thousands of dollars to obtain and thousands more to present in court.

What if you have a case that is very risky? What if the trial outcome of ‘who is at fault’ is uncertain and should you lose on that issue you don’t want to be stuck with thousands of dollars of expenses for expert witness fees? Can you do anything about it? As with many areas of the law, the answer is sometimes.

Rule 39(29) of the BC Supreme Court Rules deals with splitting the issues at trial. In an ICBC claim, it is possible to use this rule to ask a court to let the liability (fault) part of a trial run first prior to the quantum part (the part that deals with the value of the ICBC claim).

Specifically, Rule 39(29) states that:

The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.

If the court allows an order splitting liability and quantum, and if you lose your ICBC claim at trial on the issue of liability, that could potentially save you tens of thousands of dollars by having the case dismissed prior to presenting all of your medical evidence.

Reasons for judgement were released today where the Honourable Madam Justice Allan refused to sever the issues of quantum and fault.

In paragraphs 11-15 her Ladyship summarizes some of the principles court’s consider when reviewing such an application. I set out these paragraphs below:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[13] Mr. McGivern relies heavily on Vaughn v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.

[14] With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.

[15] In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.

Rule 39(29) is worth reviewing for anyone advancing an ICBC claim where the issue of fault is uncertain to see if time and expense can be saved by severing the issues of fault and quantum.

Do you have questions about this case or an ICBC claim where fault and value are at issue that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)