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.

Archive for February, 2009

ICBC Soft Tissue Injury Claims Round Up

February 28th, 2009

As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court.  In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.

The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC.  This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.

All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages.  The Court made the following findings with respect to the Plaintiff’s injuries:

(a)        That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;

(b)        That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;

(c)        That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;

(d)        That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;

(e)        That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;

(f)        That when the trapezius muscles in the neck are overworked they become stiff and painful;

(g)        That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;

(h)        That torn ligaments do not spontaneously heal; and,

(i)         That prior to the collision Mr. Jacobsen did not suffer from neck pain.

In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:

[26]            In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.

[27]            Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days.  He is a fit and healthy senior citizen who clearly anticipates living many more years.  The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep.  He begins his days feeling weary and drained rather than rested and energetic.  This compromised start affects all aspects of his daily life.  It has taken the lustre off his so-called golden years.

[28]            In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.

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The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005.  The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:

[29]            At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back.  There are no objective findings with respect to her injuries.

[30]            I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination. 

[31]            While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location.  She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….

[33]            I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident.  The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program.  While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony. 

[34]            She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active.  While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing.  One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.

On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.

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The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005.   The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial.  The court summarized the injuries as follows:

[25]            I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back.  He has testified to these injuries and much of what he says is supported by other testimony.  Several practitioners found objective signs upon palpitation.  Two found his body type susceptible to such injuries.  I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery.  I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.  

[26]            I am satisfied that he is now able to perform the tasks necessary for a gas fitter.  I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic.  While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….

[34]            Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.


ICBC Injury Claims, Lawyers and Settlement

February 27th, 2009

(Please Note:  The Case discussed in this article was overturned by the BC Court of Appeal on May 7, 2010.  You can click here to read the BCCA’s reasons for judgement)

As an ICBC Injury Claims Lawyer I have developed a particular habit when it comes to settlement of my clients claims.  I typically never bind my clients to a settlement until they sign a full and final release (the settlement contract ICBC uses in concluding injury claims).  This is my usual practice even if I receive firm instructions to settle an ICBC Injury Claim for a certain amount and I get a better settlement offer on the table.

Lawyers act as agents for their clients.  Lawyers can, therefore, bind their clients to a settlement.   Typically a client will give a lawyer authority to settle their claim for X dollars and the lawyer will attempt to get that amount or more.  If a lawyer accepts an ICBC settlement offer on behalf of their client the client is typically bound to the settlement, even if the client later wishes to get out of the settlement by not signing ICBC’s full and final release.

When deciding whether or not to accept an ICBC settlement offer, like many important decisions in life, people sometimes second guess themselves and change their mind.  For this very reason I typically negotiate on a non-binding basis making it clear to ICBC or ICBC’s lawyers that if a settlement is agreed to in principle it is never binding on my client unless and until they sign the full and final release.  This gives clients one last chance to change their mind which is never a bad option to have.

If such a term is not part of the settlement negotiations then a client may be bound even if they get cold feet and decide not to sign ICBC’s settlement contract.  Reasons for judgement were relased today (Lacroix v. Loewen) discussing exactly such a scenario.   In Lacroix the Plaintiff gave her lawyer instructions to accept a settlement offer.  The lawyer then did accept ICBC’s settlement offer.  The client, after speaking with some friends, decided not to proceed with the settlement and did not sign ICBC’s settlement contract.  The client proceeded with her Injury Claim and ICBC brought an application to dismiss the lawsuit on the basis that it was already settled.

In the end Mr. Justice Williamson permitted the claim to continue finding that after the accepted offer ICBC insisted upon a new term which was not part of the agreed settlement thus undoing the agreement to settle. But for this fact, it appears, the Plaintiff would have been bound to the settlement.  Mr. Justice Williamson summarized the law relating to offer and acceptance of ICBC Injury Claims and the required paperwork that flows from such a contract as follows:

[14] In Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62, 59 D.L.R. (4th) 114 (C.A.), McEachern C.J.B.C., speaking for the court, said at 70:

In these matters it is necessary to separate the question of formation of contract from its completion. The first question is whether the parties have reached an agreement on all essential terms. There is not usually any difficulty in connection with the settlement of a claim or action for cash. That is what happened here and as a settlement implies a promise to furnish a release and, if there is an action, a consent dismissal unless there is a contractual agreement to the contrary, there was agreement on all essential terms.

The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

[15] In the case at bar, the question becomes whether the defendants, in sending over the cheque for the settlement sum along with the release documents, insisted upon terms or conditions which had not been agreed upon or were not reasonably implied in these circumstances.

[16] There is no doubt upon the affidavit material filed by the plaintiff that when ICBC offered the plaintiff $7,000 via her counsel Mr. Mickelson, she told Mr. Mickelson to accept that offer.  He did.

[17] It was after a conversation with friends that the plaintiff telephoned Mr. Mickelson again and told him that she would not accept the offer.

[18] The plaintiff says that the documents, which she saw only after purporting to withdraw her acceptance, show that Mr. Mickelson did not follow her instructions.  She had instructed him to make an offer at $6,500, plus user fees, plus all of her expenses, an offer that would have amounted to $7,692.  However, she points out that according to the ICBC adjuster’s notes, Mr. Mickelson did not make an offer of $7,692.  Instead, he countered ICBC’s offer of $5,500 with an offer of $7,000.  Thus, the offer that he made was $692 less than the one authorized by the plaintiff.

[19] Nevertheless, when Mr. Mickelson told the plaintiff that ICBC had made an offer of $7,000, it is undisputed that she said she would accept ICBC’s offer.

[20] In these circumstances, I cannot see how the fact that the offer was $692 less than what was originally authorized matters.  The fact is that there was $7,000 on the table.  Her solicitor advised her to take this offer and she did.

The lesson in this case is to make sure that when you give your lawyer settlement instructions understand that he/she can make a binding commitment on your behalf based on these instructions.  Better yet,if you don’t know your lawyers negotiation tactics consider asking him or her to negotiate on a non-binding basis giving you, the client, the final say when the claim settlement paperwork is presented to you.


ICBC Injury Claims and Hit and Run Accidents

February 26th, 2009

Imagine being the victim of a hit and run accident in British Columbia and sustaining serious injuries.  You try your best to figure out the identity of the offending motorist but you get nowhere.  Your injuries significantly impact your day to day life and your medical expenses and wage loss are sky-rocketing.  Without knowing the identity of the other driver you have no one to sue for damages, so are you out of luck?  Not always.

In certain circumstances ICBC can be sued directly in the place of an unidentified driver.   Section 24 of the Insurance (Vehicle) Act permits ICBC to be named as a nominal defendant in certain hit and run accidents.  

Section 24 also has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.

Reasons for judgement were released today by the BC Supreme Court (Filsinger v. ICBC) where a Plaintiff who was the victim of a hit and run was awarded over $150,000 in damages as a result of serious injuries.  In doing so the court considered the duty to make ‘reasonable efforts’ to identify the offending motorist and summarized the law and the facts of the case as follows:

[17]            The defendant challenges whether the plaintiff took reasonable steps pursuant to s. 24(5) of the Insurance (Vehicle) Act to identify the owner and operator of the hit-and–run vehicle.

[18]            The defendant submits that the plaintiff decided not to co-operate and did not take the opportunity to investigate and identify the driver.  The defendant refers to Tessier v. Vancouver(City) (2002), 48 C.C.L.I. (3d) 273 (B.C.S.C.).

[19]            The leading case in the area is Leggett v. ICBC (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.), leave to appeal to S.C.C. ref’d (1993), 14 C.C.L.I. (2d) 100, where the British Columbia Court of Appeal made it clear that ICBC’s exposure to liability is limited to claims brought by those who could not ascertain the identify of the parties responsible, and not to parties who had the opportunity to identify the offending vehicle but chose not to do so.  In Leggett, unlike the case at bar, the plaintiff had spoken to the unidentified driver who had stopped at the scene of the accident.  However, the plaintiff in Leggett chose not to obtain particulars of the unidentified party, believing at the time that he had not suffered any injury.  The court found that because the plaintiff failed to make all reasonable efforts to determine the identity of the persons responsible, he could have no claim against the insurer.  

[20]            In Daniels v. Insurance Corporation of British Columbia (1985), 14 C.C.L.I. 172 (B.C.S.C.), the plaintiff was injured while riding his bicycle.  He testified that he had been riding at night with red reflective devices, and that he recalled hearing an automobile approach, but had no further memory until he awoke in hospital.  The defendant submitted in that case that the plaintiff had failed to establish that an unidentified motorist had been negligent in the collision.  The court held, at 175:

I find that a citizen having been involved in an accident, a citizen not trained in investigative procedures (if he reports the accident), he can properly expect the police authorities to carry out the necessary, reasonable investigation contemplated by Section 23 of the Insurance Act.  Therefore, I find that the Act has been complied with by this particular plaintiff and the action is properly brought.

[21]            Other cases of interest cited to me were Hocaluk v. Insurance Corporation of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360, Ball v. Insurance Corporation of British Columbia (1996), 37 C.C.L.I. (2d) 246 (B.C.S.C.), and Slezak v. Insurance Corporation of British Columbia, 2003 BCSC 1679, 5 C.C.L.I. (4th) 230.

[22]            While I would not describe the plaintiff’s efforts to locate the other driver as exceptional, on a balance of probabilities I find that he met the legal onus upon him to make a reasonable effort to find the driver.  He contacted his friend in the RCMP immediately, he met with the police the same evening and gave a statement and handed over a piece of evidence.  He published two newspaper advertisements many months after the fact, probably on the advice of his lawyer.  I note, however, that in his interviews with ICBC after the accident, he was not told that he had to do anything to find the other driver. 

If you are the victim of a hit and run collision in British Columbia and sustain injuries you should be familiar with Section 24 of the Insurance Vehicle Act and the limitations on ICBC’s liability as set out in this legislation.


BC Personal Injury Claims and the Duty to Mitigate

February 26th, 2009

If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages.  What this means is you have a duty to take reasonable steps to minimize your losses.  For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.

If you fail to mitigate your damages the value of your damages may be reduced accordingly.  In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.

But what if you can’t afford to follow your doctors advice?  What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it?  Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these.  Section 83(2) of the Insurance (Vehicle) Act reads as follows:

(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.

What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.

Reasons for judgement were released today (Smith v. Tedford) highlighting this fact.  In this case Mr. Justice Grist made the following observations:

[3]                Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.

[4]                In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.

[5]                This is not a case of putting ICBC on trial.  It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.

In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages.  In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000.  This award was then reduced by 10% for failure to mitigate.  In coming to this conclusing the Court made the following analysis:

[110]        In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50.  In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.

[111]        The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case.  In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:

1.      that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;

2.      that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;

3.      that Ms. Job unreasonably failed to follow such a program and;

4.      the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.

[112]        Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms.  Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.

[113]        Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.

[114]        I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made.  On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery.  Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments.  The burden of establishing a failure to mitigate is on the defendant.  I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.

[115]        Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.

[116]        In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.


I wish I knew that before I settled my ICBC Injury Claim…

February 25th, 2009

You are injured through the fault of another motorist in BC.  You miss time from work.  You go into debt paying for therapies and medications.  You experience pain and your typical lifestyle is interfered with.  Then, as your injuries are slowly getting better you are approached by your ICBC adjuster to settle your claim.   The offer seems low but you are sick of dealing with the aftermath of your ICBC Injury Claim and you accept the offer.

Time goes by and your injuries linger.  You had hoped that you would get better but unfortunately things didn’t turn out as optimistically as you had planned.  You’re still missing time from work.  Your therapy expenses are ongoing and your doctor is running out of ideas.  Your actual expenses and wage loss soon exceed your ICBC settlement.  You regret settling your claim and then you call an ICBC Injury Claims Lawyer.  The Lawyer tells you the offer was unfair, your claim was likely worth several times more than what you settled for.  You eagerly ask if the lawyer will take your case and he/she responds “sorry, you signed a contract with ICBC saying you can no longer sue as a result of this crash, you can’t reopen your claim.”

As an ICBC Injury Claims Lawyer this is a scenario I unfortunately see all too often.  People often contact me after they’ve settled their claim.  Except in exceptional cases (for example where a settlement is obtained through fraud or by duress) ICBC Claims Settlements usually can’t be set aside.  I hate breaking this news to people if they’ve clearly been short changed by their settlement.

So, if I can impress one fact on anyone with an ICBC Injury Claim, it is this:  get legal advice before you settle your claim.  It doesn’t have to be from me.  It can be from any lawyer experienced handling ICBC Claims.  Shop around, find a lawyer who you can connect with and get a free ICBC Claims consultation.  BC has many very well qualified personal injury lawyers and many of them provide initial consultations free both of charge and obligation.  I’ve seen many experienced ICBC Injury Claims Lawyers spend many hours giving people free initial consultations, even in circumstances where the lawyer was not interested in taking the case.  

Getting anything of value for free is rare so why do ICBC Injury Claims Lawyers give Free Consultations?  It’s simply a matter of economics.  This is a competitive business and giving free consultations is almost a requirement for ICBC Injury Claims Lawyers wishing to stay competitive.  It’s a simple formula of supply and demand and the result is the availability of free consultations for you, the consumer.

So take advantage.  Get a free consultation before you settle your ICBC Injury Claim and help yourself make an informed choice before saying yes or no to ICBC’s settlement offer.  


ICBC Injury Claims and Future Wage Loss

February 24th, 2009

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.

Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished.  Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.

The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy,  These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1.      The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.      The plaintiff is less marketable or attractive as an employee to potential employers;

3.      The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4.      The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law.  In a thorough analysis Madam Justice Smith gave the following reasons:

[140]          While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating: 

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade.  The case turned on its facts and did not establish any new principle of law.  Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it.  I am satisfied that Steward has no application in the case at bar. 

[141]        In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident.  The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches.  The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”.  The assessment of damages was upheld on appeal.  Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made.  He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations.  Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations.  There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142]        MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42]  That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations.  Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143]        I conclude that the approach I should take to the assessment of lost earning capacity has not changed.  Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

______________________________________________________________________________________

On another note, today’s case dealt with chronic soft tissue injuries and serious headaches.  In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113]        I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports.  Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions.  Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient.  Dr. Jung’s two examinations of the plaintiff were thorough and well-documented.  I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence.  I also accept the evidence of Dr. Blasberg.

[114]        Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back.  I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint.  There is no evidence that he suffered from these symptoms prior to the motor vehicle accident.  I do not find on the evidence that stress causes his symptoms, although it may exacerbate them.  I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to.  I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115]        The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night.  The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident.  As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment.  Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116]        Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better. 


A Little Bit on ICBC Injury Claims and the Jurisdiction of BC Courts

February 24th, 2009

Does the BC Supreme Court have standing to preside over an Auto Injury Claim for Damages that occurred outside of British Columbia?  The answer, as in many areas of the law, is sometimes.

There is a long history in the common law setting out the circumstances when a BC Court has jurisdiction to preside over an Injury Claim that arises in a foreign jurisdiction.  More recently the Court Jurisdiction and Proceedings Transfer Act came into force codifying some of the common law principles governing circumstances in which BC Courts have jurisdiction to preside over a case.  This legislation is fairly new and has received little interpretation by the BC Courts.  

Today, Mr. Justice Brown of the BC Supreme Court released reasons for judgement (Scott v. Hale) interpreting this legislation and giving clarity to the circumstances when the BC Supreme Court can hear an accident claim that occurred out of Province.

In today’s case the Plaintiff was involved in 2 motor vehicle collisions, the first in Alberta and the second in British Columbia.  The Plaintiff applied to have both cases heard at the same time.  The Defendants in the BC Car Crash opposed the motion.  In opposing the motion the ICBC Defence Lawyer argued that the Court had no jurisdiction to preside over the Alberta accident therefore the claims should not be heard together.

Mr. Justice Brown rejected this argument and released what are probably the most comprehensive reasons to date interpreting the BC Court Jurisdiction and Proceedings Transfer Act.

The heart of the judgement focused on whether the BC Supreme Court has ‘subject matter competence’ to preside over an Alberta car crash case.  After finding that there were sufficient reasons for both the BC and Alberta auto accident claims to be heard at the same time Mr. Justice Brown concluded that the BC Court indeed is competent to preside over the Alberta car crash claim.  After a lengthyt analysis the Court came up with the following definition of “Subject Matter Competence”

[33]            To clarify: isolating for a moment the word ‘connections’, the only ‘connections’ relevant to territorial competence would be those between a province and the facts upon which a proceeding is based (and as discussed above, broadly and unfortunately referred to as ‘subject matter’ in Morguard).  For example: where did the accident take place?  Where was the contract made?  Where was the product sold?  Where was it manufactured?

[34]            But those questions stand well apart from other specific jurisdictional questions such as, How much money is being claimed?  Does the court in question have jurisdiction to hear torts, product liability or tax cases?  These are factors that relate to restrictions placed upon a courts’ jurisdiction by its own legislature.

[35]            I note that in the Draft all instances of “superior court” were intended to be substituted with the names of each provinces’ court of “unlimited trial jurisdiction”.  As such, the CJPTA, as adopted in British Columbia, refers to the Supreme Court.   The Supreme Court Act, R.S.B.C. 1996 c. 443 explains:

9(1)      The court continues to be a court of original jurisdiction and has jurisdiction in all cases, civil and criminal, arising in British Columbia.

[36]            If the Supreme Court has jurisdiction in all cases, what subject matter restrictions might there be?  Of course the apparently all encompassing jurisdiction of the Supreme Court has been limited in many instances in the grant of exclusive jurisdiction over certain subject matters to various boards and tribunals.  In my view, it is just such restrictions as these that are relevant factors when considering whether the court owns subject matter competence. 

Applying this definition to the case at bar Mr. Justice Brown summarized his reasons at paragraph 45 of the judgement as follows:

I find this case is a tort committed in Alberta, the Plaintiff claims compensation for non-pecuniary and pecuniary losses resulting from Defendant Hale’s alleged negligence; and there is no legislative or other restriction placed upon this Court that would in any way inhibit it from hearing such a claim, nor from granting such relief.  Therefore, the subject matter of this case is well within the subject matter competence of this Court

This case is perhaps the leading authority in BC dealing with a BC Court’s Subject Matter Competence.  Anyone interested in the current state of Canadian Conflicts Law and the topic of Canadian Superior Courts jurisdiciton should thorougly review this case.  


Pain and Suffering and Your ICBC Injury Claim

February 23rd, 2009

If you have an ICBC Injury Claim for Non-Pecuniary Damages as a result of a BC Car Crash (a tort claim) the best way to determine the potential value of your non-pecuniary damages (damages for things such as loss of enjoyment of life, pain and suffering) is to look at how courts have treated similar ICBC injury claims. 

When looking to previous court cases for guidance some of the things you will want to look at are similarities with the type of injury, the severity of injury, the age of the Plaintiff, whether the injury involves a dominant or servient limb, the types of treatments involved and the prognosis.  Another useful factor is recency.  If you can’t find recent cases with similar injuries and are relying on older cases you should adjust the damages for inflation to get a sense of what they would be worth today.

No two injuries are identical and the best one can usually hope to do is find ICBC Injury Cases with a similar injuries to help establish a potential range of damages.  In recognizing the the uniqueness of each ICBC Injury Claim Mr. Justice Halfyard said the following in the case of Tuner v. Coblenz:

It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall.  No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities.  The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity.  The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different.  The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.

As an ICBC Injury Claims Lawyer I have enjoyed publishing this blog to help people have access to a database of ICBC Injury Claims.  Time permitting I intend to keep this service up.   To this end, here is the latest ICBC Injury Claims update.

Reasons for judgement were released today by the BC Supreme Court (Rattenbury v. Samra) awarding a Plaintiff $30,000 in non-pecuniary damages as a result of an ICBC Injury Claim.

In today’s case the 23 year old plaintiff was injured when he was involved in an intersection crash in Surrey, BC.  The crash occurred when the Defendant attempted a left hand turn in front of the Plaintiff’s vehicle.  Fault was admitted leaving only the issue of quantum for trial (value of the claim).

In this case the Plaintiff suffered a concussion and had headaches, neck pain and shoulder pain.  These injuries resolved fairly quickly.  The most serious injury was an alleged low back injury.  The Plaintiff’s physician gave evidence that the collision caused a disc injury to the L5/S1 level of the Plaintiff’s spine.

The court rejected this opinion and found that this disc injury could have easily preceded the car crash given the Plaintiff’s very active lifestyle.  The court did find, however, that even if the disc injury was unrelated to the car crash this disc injury became symptomatic with pain because of the collision.  The court made the following finding:

[86]            I find myself unable to accept Dr. Fritz’s opinion that the disc injury occurred in the motor vehicle accident.  Certainly the disc injury does exist but Dr. Fritz agrees that it is impossible to prove when it occurred and it could just as easily have occurred from the plaintiff’s other activities than from the motor vehicle accident.  Dr. Fritz did not treat the plaintiff before his accident and it is therefore understandable that he would conclude that the disc injury occurred in the accident when the plaintiff demonstrated a restricted straight leg raising after the accident.  However, I do not think that is enough to prove the disc injury occurred in the accident itself.

[87]            In my view it is enough to prove, however, that even if the disc injury preceded the accident, it became symptomatic with back pain because of the accident.  The evidence is that the plaintiff had no back problems before the accident and was a completely healthy and physically active young man.  As a result of the accident he could not play soccer for six months and was unable to do any of the heavy lifting in his job at Black & Lee.

[88]            The plaintiff’s evidence of originally not being able to do any heavy lifting at work but being able to do it at the time of his examination in January 2008, and then not being able to do it again by the time of trial, is certainly strange.  However Dr. Fritz was never questioned about this evidence and it is logical to me that the plaintiff may have been able to resume the heavy lifting for a time after the accident, with back pain, but over time became too wearing on him and he had to stop.

[89]            I am satisfied that it has been proven that the plaintiff has chronic back pain resulting from the disc injury, even if that injury preceded the accident.  I must accept Dr. Fritz’s opinion that it is chronic because I have no other medical opinion.

[90]            I do conclude, however, this chronic back pain is only mild in nature, in the nature of a nagging back pain that does not disable the plaintiff from pursuing his soccer at the highest level or his golf or any other sports that he used to enjoy, and does not prevent him from working full time at the business in a more supervisory role.

The following damages were awarded after a 2 day trial:

Non-Pecuniary Damages: $30,000

Past Wage Loss: $1,088

Special Damages: $271.56


A Busy day with ICBC Injury Claims

February 19th, 2009

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims.  Here are the highlights of these judgements

In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision.  The key findings of fact were as follows:

30]            Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do.  Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems.  Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before.  She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31]            I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip.  I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before.  I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches.  However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32]            Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits.  I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits.  Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future.  To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary.  The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:

$35,000.00

Special damages:

$8,500.00

Past loss of wages:

$12,000.00

Loss of capacity:

$20,000.00

TOTAL:

$75,500.00


 

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.  

The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints.  Damages were awarded as follows:

[109]        In summary, my conclusions are as follows:

(a)        The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b)        I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c)        Mr. Haag’s claim for past income loss is dismissed.

(d)        I award Mr. Haag $60,000 for loss of earning capacity.

(e)        Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only.  I will leave counsel to calculate the dollar amount.  The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f)        With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts. 

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC.   The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion.   Her syptmoms improved by about 80% by the time of trial.  The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

 

(a)

Non-Pecuniary Damages

$30,000

(b)

Loss of Income to Trial

$15,000

(c)

Loss of Earning Capacity

$15,000

(d)

Future Care

$     500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry.  This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident.   Damages were assessed as follows:

1.

Pain and suffering

$115,000

2.

Past wage loss (gross)

$75,000

3.

Impairment of earning capacity

$262,000

4.

Special damages

$47,400

5.

Future care

$75,000

Whew!  Now back to work.


Court of Appeal finds Bicyclist 60% at Fault in ICBC Injury Claim

February 19th, 2009

I am pressed for time today so this ICBC Injury Law update will be short on detail.

In reasons for judgement released today by the BC Court of Appeal (Quade v. Schwartz) a Trial judgement holding a bicyclist 75% at fault for an intersection collision with a motorist was overturned and the Court of Appeal determined that the cyclist was 60% at fault for the the collision.

I blogged about the trial level judgement when it was released and you can read my previous post for background.

Today the Court of Appeal found the trial judgement to be plainly unreasonable and engaged in the following analysis in finding a lesser degree of fault for the cyclist:

[14]            The Negligence Act, R.S.B.C. 1996, c. 333 provides, by s. 6, that apportionment of fault is a question of fact.  Accordingly, apportionment of fault should not be varied on appeal unless the appellant can demonstrate some palpable or overriding error in the trial judge’s assessment of the facts, or there are “strong and exceptional circumstances”: see Stein v. “Kathy K” (The), [1976] 2 S.C.R. 802; Ryan v. Victoria (City), [1999] 1 S.C.R. 201 and Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[15]            The defendant also relies upon the standard of review applicable on appeal from proceedings conducted on summary trial under Rule 18A.  It must be demonstrated that the judge’s conclusion cannot reasonably be supported: see Orangeville Raceway Ltd. v. Wood Gundy Inc., 59 B.C.A.C. 241, 6 B.C.L.R. (3d) 391, and Colliers Macaulay Nicolls Inc. v. Clarke, [1989] B.C.J. No. 2455.

[16]            Apportionment of fault is made not as an assessment of the relative degrees to which the parties’ conduct is implicated causally in the damages suffered, but rather on the relativeblameworthiness of the parties’ conduct.  In Cempel v. Harrison Hot Springs Hotel Ltd., 100 B.C.A.C. 212, 43 B.C.L.R. (3d) 219 Mr. Justice Lambert said:

[19]      … The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances.

[20]      The approach to apportionment that I have described is supported by the decisions of this Court in Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (see particularly at p.277) and Dao v. Sabatino (1996), 29 C.C.L.T. (2d) 62 (see particularly at p.75). In the Ottosen case the point was put in these words:

The words used are the words of fault. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation.

[Emphasis added]

[17]            In this case, the judge said the plaintiff’s conduct was “extremely careless and showed little concern for safety” (para. 63). 

[18]            In considering the defendant’s relative blameworthiness, the trial judge said only that he should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane. 

[19]            With respect, this characterization of the defendant’s relative degree of blameworthiness fails to take account of a number of matters.  First, there is no reference to the duty owed by a left-turning driver under s. 174 of the Motor Vehicle Act to yield the right of way to oncoming through-traffic that is so close as to constitute an immediate hazard.

[20]            On the trial judge’s findings of fact, there is no doubt that the plaintiff had the statutory right of way.  She found that:

1.         when the defendant was starting to cross the northbound lanes, the plaintiff was in a well-lit area (para. 41);

2.         the defendant should have had an unobstructed view of him (para. 42);

3.         the defendant should have seen the plaintiff before pulling out in front of him because the plaintiff was there to be seen (paras. 43 and 60);

4.         the plaintiff was south of the intersection when the defendant started to turn left; and

5.         the plaintiff was an immediate hazard when the defendant began his left turn (para. 56).

On all of these findings, the plaintiff enjoyed the statutory right of way under s. 174 of the Motor Vehicle Act, and was entitled to expect that the defendant would yield the right of way to him. In the judge’s words, the plaintiff “had no reason to suspect that Mr. Schwartz would pull out in front of him” (para. 57).

[21]            Yet there is no mention of these facts, nor of the defendant’s breach of statutory duty in the trial judge’s assessment of the relative blameworthiness of the two parties. 

[22]            I infer from the trial judge’s holding that the plaintiff was “extremely careless”, and from the apportionment of fault that she made, that she considered the plaintiff’s negligence in failing to have a lighted headlight on his bicycle to be far more blameworthy conduct than the negligence of the defendant as detailed above. It is difficult to understand why this would be so, and the judge provides no explanation.

[23]            There is no doubt that in riding at night without a lighted headlight, the plaintiff demonstrated a lack of reasonable care for his own safety.  There is also little doubt that the absence of a headlight on the bicycle made it more difficult for oncoming motorists to see the plaintiff. 

[24]            In Chesley v. Irvine, [1987] B.C.J. 520 (C.A.), a motorcyclist rode into a Kamloops intersection in the hours of darkness without a headlight on the motorcycle.  The cyclist collided with the defendant who was making a left turn in his vehicle in the intersection.  The trial judge held the motorcyclist 40% responsible, and the driver of the left turning vehicle 60% responsible.  In this Court, Mr. Justice Taggart said:

Each driver here had a duty of care to the other. Each was required to maintain an appropriate look-out for other vehicles. Each had a duty to take care to avoid an accident. In addition, the defendant, as the driver turning left across two lanes in which southbound traffic might be expected, had an obligation to insure that she could safely make the turn.

The judge found her look to the north for southbound traffic was casual and insufficient. I see no basis upon which we could or should interfere with that conclusion. But what the defendant was looking for was a vehicle with lights on. That is what she should have been looking for. She did not see that kind of vehicle for the good reason that it was not there. The vehicle that was there had no lights on.

In my opinion, the plaintiff in these circumstances cannot rely on his full dominant position on the highway and the judge was in error in according him that dominant position. Furthermore, the defendant’s vehicle was there to be seen by the plaintiff. Unlike the plaintiff’s motorcycle, the lights of the defendant’s vehicle were on, as was her left turn signal. The plaintiff failed to see it and, consequently, failed to take, so far as can be ascertained, any action to avoid the collision.

In the circumstances of this case I think we are entitled to intervene and reapportion the degrees of fault. I would allow the appeal and find the plaintiff 60% at fault and the defendant 40%.

[25]            Lambert J.A. in concurring reasons said:

The Supreme Court of Canada adopted the line of English authorities. The stricture is imposed on this court that we should not vary an apportionment unless we are convinced it is clearly wrong. Mr. Justice Ritchie, for the Supreme Court of Canada, said it would require a very strong and exceptional case.

But when we can indentify the specific point on which we conclude there was an error by the trial judge that affected his apportionment then that will be a very powerful circumstance to persuade us that his apportionment must be reconsidered.

In this case, immediately before the trial judge made his apportionment he said:

“Nonetheless he was in the dominant position.”

Referring to the plaintiff on his motorcycle. But the significant factor is that the headlight of his motorcycle was not on. The fact that that headlight was not on did not cause him to lose his dominant position, but it made the dominant position much less significant a factor than it would otherwise have been. That reduced significance does not seem to have been considered by the trial judge at the point in his judgment where he made his apportionment.

[26]            In the result, the Court varied the parties’ relative degrees of fault, holding the defendant 40% at fault, and the plaintiff 60% contributorily negligent. 

[27]            In that case, the trial judge’s error appears to have been in holding that the plaintiff continued to enjoy the statutory right of way when his failure to have a lighted headlight made it more difficult for the defendant to see her approaching.  In the words of Lambert J.A., the absence of a headlight on the plaintiff’s vehicle: “made the dominant position much less significant a factor than it would otherwise have been”.

[28]            The same reasoning may be said to apply in this case.  However, the significant difference between the two cases is that in the circumstances of the case at bar the trial judge specifically found that the defendant should have seen the plaintiff before he pulled out in front of him, and the plaintiff was there to be seen.  I interpret these findings to mean that although the absence of a headlight on the bicycle was a negligent act on the plaintiff’s part, it had relatively little to do with the defendant’s failure to see the plaintiff given the well-lit nature of the intersection. According to the judge’s findings, even without a headlight the defendant should have seen the plaintiff and should have yielded the right of way to him.  Thus, while the absence of a headlight on the plaintiff’s bicycle may have diminished the importance of his statutory right of way it cannot be said to have displaced it to the extent that is seen in Chesley. 

[29]            In my respectful view, the trial judge’s apportionment of fault, on her findings of fact, was plainly unreasonable and a palpable and overriding error. 

[30]            I would allow the appeal and vary the apportionment of liability by holding both the plaintiff and the defendant equally at fault for the accident.