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 November, 2009

ICBC Uninsured Motorist Claims and the Health Care Costs Recovery Act

November 26th, 2009

Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act.  It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.

A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance.  In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs.  (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).

Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.

Section 24 of the Health Care Costs Recovery Act holds in part that:

(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….

(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“.  If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced.  Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.

Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.

If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.

For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”

It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘.  So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation.  Clear as mud folks?


$40,000 Non-Pecuniary Damages for Young Mom With Soft Tissue Injuries

November 26th, 2009

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $43,000 in total damages to a Plaintiff as a result of a 2005 car crash.

In today’s case (Daniels v. Haaksma) the Plaintiff was a passenger in a vehicle that was rear ended.  As a result of the collision she suffered “mild to moderate soft tissue injuries to her lower and mid-back, and moderate soft tissue injuries to her neck. ”  Mr. Justice Ehrcke found that while these injuries “resulted in considerable pain, discomfort and loss of range of motion, as well as headaches and loss of sleep”  these largely improved after 6 months and ‘substantially recovered” 3.5 years after the crash when the Plaintiff was injured in a subsequent collision.

In awarding $40,000 for non-pecuniary damages for the Plaintiff’s pain and suffering and loss of enjoyment of life the Court stressed the fact that the Plaintiff was a young mother at the time of the crash and that her injuries caused her to lose out “on experiencing the full joy of raising her son when he was an infant“.  In assessing the Plaintiff’s damages at this figure Mr. Justice Ehrcke made the following findings:

[41] As set out above, I have concluded that the plaintiff suffered mild to moderate soft tissue injuries to her lower and mid-back and moderate soft tissue injuries to her neck as a result of the 2005 accident, resulting in pain, discomfort, and loss of range of motion, headaches, and loss of sleep. These symptoms were particularly acute for the first several months after the accident, but they improved about 75 percent after six months. She continued, however, to experience some pain and discomfort over the next two years. By the time of the subsequent accident in October 2008, she was substantially recovered and did not have any continuing limitations on her ability to work…

[45] One important factor in the present case is that the plaintiff’s injuries came at a particularly unfortunate time for her, when she was trying to care for her infant son. This was her first child. He was only four months old at the time of the accident. As a result of her injuries, she could not enjoy a carefree experience of playing with him. She could not lift him without someone else’s assistance. She had to have someone hand the child to her when he needed feeding. Because she was breast feeding, she was reluctant to take painkillers to relieve her pain. It is a cliché, but true, that children are young only once. The plaintiff feels that as a result of the accident she lost out on experiencing the full joy of raising her son when he was an infant. That is a loss that she can never recover. This was a great disappointment to her.

[46] The evidence in this case also establishes that the accident put considerable stress on the plaintiff’s relationship with her fiancée. He was working long hours at his new business, and when he came home, he had to take on housekeeping chores that would normally have been shared. He described how, as a result of the accident, the plaintiff was no longer the active person she had been, and how much of the fun went out of their relationship.

[47] Particularly important in this case is the fact that the plaintiff had been an accomplished soccer player prior to the accident. This was clearly a very important part of her life. She had been playing since she was a young child. She played on three different leagues at a very high level. She had travelled to foreign countries with her team. To a large extent, her social life revolved around her athletic activities. It was an important factor in initially bringing the plaintiff and her fiancée together. After the accident, she found she could not play soccer. She tried for a month or so in 2006, but had to stop…

[50] On the evidence, I am satisfied that the plaintiff tried to resume playing soccer in 2006 and perhaps again in 2007 and that she stopped playing because she felt the pain from her injuries prevented her from playing at the level she had previously been accustomed to. I am satisfied that this is a factor that should properly be taken into account in assessing non-pecuniary damages…

[53] In my view, the severity of the injuries, the length of their persistence, and the effect which they had on the plaintiff’s life in the present case are more serious than in the cases cited by the defendant, and somewhat less serious than the cases cited by the plaintiff. At the end of the day, every case is unique and must be determined on the basis of its own facts.

[54] I am satisfied that in the circumstances of the present case the proper assessment of non-pecuniary damages is $40,000.


Functional Assessment Biomechanical System (FAB) Deemed Inadmissible in Injury Claim

November 26th, 2009

Reasons for judgement were released today by the BC Supreme Court considering the admissibility of the “Functional Assessment Biomechanical System” (known as FAB for short) in a personal injury claim.

In today’s case (Forstved v. Penner) the Plaintiff was suing as a result of personal injuries.  In presenting her case she hired an occupational therapist to write a report summarizing her physical limitations and giving an estimate of her future care needs.  In preparing this report the occupational therapist used the FAB system.

Mr. Justice summarize the FAB System as follows:

[5] The development of the FAB started in 2004 and Mr. McNeil has been using the FAB results since 2006 or 2007 in the preparation and formulation of his opinions.

[6] The FAB in short is comprised of hardware, the most critical part being some 13 wireless inertial sensors that are attached to a subject or patient’s body while they undertake various physical tasks; and software, that translates the signals from the sensors into measurements of the movements of the body on a real-time basis. Embedded in the software are functions such as the analysis of the data as requested by the operator as the test subject is conducting the instructed activities. It also includes a timer function, graphing and other report templates.

[7] Mr. McNeil is present while the subject performs the tests and says that he observes the actions of the subject. He also states that the FAB is not a diagnostic tool but rather augments his findings. He says he applies standardized tests which are set out in his report and that the FAB system provides additional measures that would otherwise only be guessed at by an evaluator.

The Defence lawyer argued that the expert report should not be admitted into evidence because the FAB System was “novel as a science or technique“.  Mr. Justice Masuhara agreed that the report was not admissible as the FAB System does not meet the judicially required “threshold level of reliability“.

Specifically Mr. Justice Masuhara held as follows:

[12] As I have mentioned, the report itself reflects the measurements from the FAB. The report is lengthy, being 82 pages, again which I say is largely comprised of the information derived from the FAB.

[13] The report says that there are checks and balances within the tests when cross correlating and with cross correlating tests in order to establish the level of effort put forth by the individual. As I have said, he states that it is not a test protocol and that standard tests are used throughout the assessment and that motion capture system augments the evaluator’s observation and allows for accurate measurement, mobility and measurements of biomechanical forces that could otherwise not be performed by the evaluator and that tests are performed to identified the reliability of the individual’s pain reports including distraction tests and Waddell signs.

[14] On the other hand, the defence in following the factors in R. v. J.?L.J. points to the following.

[15] That the technique which includes both the hardware and the software has not been tested except by Biosign or someone under its direction. Mr. McNeil’s own words stated that the testing was still in the “beta phase” which I took to mean that it was not yet ready commercially. The software itself is proprietary and Mr. McNeil being an occupational therapist is not able to speak to the coding as he did not develop it, nor could he speak to the hardware but relied upon his own team of engineers who have developed these things. From that perspective there are some difficulties with respect to the ability to test and to query the software and the hardware embedded and integrated within the FAB.

[16] That the technique while Mr. McNeil indicated was under some form of peer review, nothing has been published and Mr. McNeil was not able to indicate when such a review or the results of such a review would be produced. He also agreed that the motion capture technique is a relatively new technique. Though I note that he stated it was not “cutting edge”.

[17] There are no published standards for the techniques nor is there any rate of error known though Mr. McNeil did say that the device had met CSA, Health Canada, FDA and FCC standards. However, on cross-examination it was revealed that these standards largely deal with safety issues with respect to the device being used upon a subject and could not be taken to speak to the accuracy or reliability of the FAB.

[18] In regard to the technique being generally accepted, Mr. McNeil is the only occupational therapist in British Columbia using the motion capture software. There is no consensus on any technology being the best for the type of work that is the subject of this ruling. No one has yet purchased his technology and the vast majority of occupational therapists do not use motion capture techniques.

[19] Complicating the entirety of the circumstances is the fact that Mr. McNeil is the inventor and a marketer of the FAB. He has a financial interest in the acceptance and success of the FAB. Mr. McNeil’s testimony revealed a lack of appreciation regarding the role of a court expert and the need for open and candid disclosure of a financial interest in the very tools that he refers to in validating or verifying the reliability of the information supporting his opinions. His view that such information was irrelevant was troubling. This problem with respect to his non-disclosure was also referred to by Madam Justice Allan recently in the Rizzolo v. Brett, 2009 BCSC 732 at para. 105. I wish to add that Mr. Mussio was not aware of these issues and that Mr. Chan for the defence only came upon Mr. McNeil’s testimony before Allan J. on the weekend before this trial started.

[20] In the circumstances, I am of the view that the results from the FAB do not meet the threshold level of reliability. As the subject report is comprised to a large degree with the data from the FAB, which creates an unwarranted perception of precision, and which is integrated into the recommendations I rule that the report is not admissible in its present form. Having said that, I think it would be in order for the court to receive submissions from Mr. Mussio and of course reply by Mr. Chan as to Mr. McNeil being called to provide evidence and his opinions based on his observations or some other form in which his testimony can be received by the court. That concludes my ruling.


$35,000 Non-Pecuniary Damages for STI's of Over 10 Years Duration

November 23rd, 2009

Reasons for judgment were released today by the BC Supreme Court, Cranbrook Registry demonstrating that a lengthy duration of injury does not always merit a significant award of non-pecuniary damages.

In today’s case (Salzmann v. Bohmer) the Plaintiff was injured in a BC Car Crash.  The collision took place over 10 years before trial.  While the time-frame from the accident to trial was unusually long, such delays are not unheard of when Infant Plaintiffs are involved in motor vehicle collisions.  One reason for this is that in British Columbia  limitation periods typically do not start running for infants in tort claims until their 19th birthday.  Another reason is that doctors are more reluctant to give a prognosis with respect to injuries suffered in infants as opposed to adults.  In any event, this case involved injuries of over 10 years duration by the time of trial.

Despite the duration of the Plaintiff’s Injuries, Mr. Justice Melnick found that they were not particularly severe or debilitating. He also found that she failed to take reasonable steps to reduce her symptoms and that with appropriate exercises there was room for considerable improvement.  In assessing the Plaintiff’s non pecuniary damages at $35,000 Mr. Justice Melnick held as follows:

[18] Medical reports are often as interesting for how they are worded as for what opinions they express. In the case of the report of Dr. Apel, she indicated that she has examined Ms. Salzmann at the request of Ms. Salzmann’s counsel. Then, while responding to a specific question put to her by that same counsel (whether Ms. Salzmann’s symptoms will abate eventually) she carefully replied that “…it is unlikely those symptoms spontaneously will abate eventually” (emphasis added).

[19] The use of the word “spontaneously” coupled with her pointed remarks that Ms. Salzmann’s lack of conditioning and need for an exercise therapist or kinesiologist suggests to me that Ms. Salzmann’s symptoms likely will abate provided she becomes committed to an appropriate program of exercise (as opposed to passive treatments such as massage). Ms. Salzmann must take a significant role in her own recovery, something she has not done in the past (perhaps due to her being so young, perhaps due to not having been given adequate instruction or having been provided with the required sense of self-discipline). For this reason she bears some, but far from all, of the responsibility for her continued pain given that she was injured when only ten years of age.

[20] I have no doubt that Ms. Salzmann suffered musculoligamentous strain to her cervical spine as a result of the accident and that, in 2003, she still experienced residual tightness in her trapezius and pectoral muscles. I also accept that in 2008 she demonstrated a chronic regional myofascial pain syndrome as described by Dr. Apel. Whether, by that time, she could have avoided such a sequela to the injury she incurred in the accident is a good question.  Things may have been different if she had followed an appropriate and properly directed regime of exercise after the accident. The reality is that she did not, and the symptoms she displayed apparently were not sufficiently alarming to anyone to insist that she do so, and she was not a complainer. With a few exceptions, Ms. Salzmann’s life carried on much as normal, as best as could be observed in a child who was in the process of development, growing and maturing.

[21] Today, she still suffers from the injury she received in the accident. But the message from her own doctor is loud and clear: she can do something about it.

[22] I have no evidence upon which I can estimate the cost of an exercise therapist or kinesiologist. Dr. Apel gave no indication of the length of time Ms. Salzmann should be supervised. However, the non-pecuniary damages I will award her will recognize that her road to the eventual abatement of her symptoms will probably require her to not just be self-motivated, but have the assistance of a professional for advice for a period of time to set her on the right track. That said, I note that no defendant should be required to pay for anyone’s lack of interest in pursuing his or her own recovery. Ultimately we all bear a responsibility to do what we can to attain and maintain good health. In the legal realm, this constitutes mitigation, and a plaintiff bears a legal duty to mitigate.

[23] With all of the above in mind, I assess Ms. Salzmann’s non-pecuniary damages at $35,000. I agree with Ms. Salzmann’s counsel that the decision of Madam Justice Humphreys in Sinnott v. Boggs, 2006 BCSC 768, is the most relevant authority provided to me with respect to non-pecuniary damages. Those provided by counsel for the defendant deal largely with milder forms of injury with less chronic consequences.

[24] From the amount of $35,000 I deduct 20% for Ms. Salzmann’s failure to mitigate by not pursuing the appropriate conditioning and exercise programs despite the fact that they were laid out for her as early as 2000. Thus, the net award of non-pecuniary damages is $28,000.


Even More on Costs and "Sufficient Reason" to Sue in the BC Supreme Court

November 20th, 2009

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.

In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).

The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”

Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.


More on the Scope of Examination For Discovery Evidence At Trial

November 19th, 2009

When a Defendant is examined for discovery in a BC Injury Claim damaging answers can be read in at trial as evidence against that defendant. A limit to this, however, is that if there is more than one defendant in a lawsuit the evidence can generally only be used against the defendant who was examined (click here to read a previous post discussing this restriction).

Reasons for judgment were released today demonstrating an exception to this restriction.  In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 motor vehicle collision.   The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.

In the course of the lawsuit representatives of GMC were examined for discovery.  The Plaintiff obtained admissions which were useful in advancing their lawsuit.  Subsequent to this, GMC sought bankruptcy protection under Chapter 11 of the US Bankruptcy Code.  Because of the Bankruptcy the plaintiff’s could no longer compel the GMC representatives as adverse witnesses.   The case was set for trial and the Plaintiff wished to read in the discovery answers of these witnesses as against the other defendants.  The other defendants opposed this raising the limitation set out in Rule 40(27) of the BC Supreme Court Rules.

Mr. Justice Goepel agreed that the restriction in Rule 40(27) “does not allow exceptions and, accordingly, the discovery evidence would not be admissible pursuant to Rule 40(27) as against anyone other than GMC“.

However, the Court went on to hold that, despite this restriction, the Court could permit this evidence in as against the other defendants under Rule 40(4) of the rules of Court due to the circumstances of this case.    Below I set out Mr. Justice Goepel’s useful analysis:

[27] Rule 40(4) deals with the evidence of witnesses who are otherwise unavailable.  Rule 40(4) gives the court the discretion in certain defined circumstances to allow a transcript of prior evidence given by the witness to be put in evidence.  The Rule reads:

40(4)  Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.

[28] Mr. Leffert and Mr. Uthe are both residents of the United States.  They are not subject to this Court’s subpoena powers and the plaintiffs cannot compel their evidence at trial.

[29] The Rule is discretionary in nature.  If the witness cannot attend for one of the stated reasons the court may, not must, allow a transcript of prior testimony to be put into evidence, subject only to the requirement of prior notice.  In determining whether or not to allow the evidence to be admitted, the court must consider matters of trial fairness and potential prejudice to the parties.

[30] Rule 40(4) has been the subject of several recent decisions.  Most have concerned applications to introduce a deceased plaintiff’s examination for discovery transcript.  The authorities were reviewed and considered in Malik Estate v. State Petroleum Corp., 2007 BCSC 934, 74 B.C.L.R. (4th) 330.  In Malik, the plaintiff sought to admit into evidence the transcript of the examination for discovery of Mr. Malik that had been conducted by the defendant.  Mr. Malik had since died. After reviewing previous decisions dealing with Rule 40(4) and considering at some length the restated rules concerning the admission of hearsay evidence, Burnyeat J. concluded that the transcript of Mr. Malik’s discovery was admissible.

[31] The arguments in favour of admissibility are much stronger in this case than in Malik.  In Malik, the plaintiff was seeking the admission of discoveries conducted by the defendant.  Such discoveries often present an incomplete version of the case as an examiner may choose to refrain from examining on some aspect of the case in order to avoid revealing trial tactics.  The potential for prejudice in such cases is great, particularly when the witness is deceased and the transcript is the only evidence of that witness that will be before the court.

[32] That is not the situation in the case at bar.  Here the examination was conducted by the plaintiffs.  It was conducted with the intent that the evidence would be read in at trial.  Absent the bankruptcy, Leffert and Uthe could have been called as adverse witnesses and their evidence would have been admissible against all defendants.

[33] There is minimal prejudice to the remaining defendants if the evidence is admitted.  Mr. Leffert and Mr. Uthe are clearly allied with the GM defendants.  There is no reason to believe that they would not voluntarily attend at the trial if the GM defendants requested their attendance.  If the evidence is admitted the remaining GM defendants can call Mr. Leffert or Mr. Uthe to explain any admissions that they may have made.

[34] It may well be pursuant to the Letters of Request that the plaintiffs could again obtain the evidence of Mr. Leffert and Mr. Uthe and then lead that evidence at trial.  Rule 1(5) seeks to secure the just, speedy and inexpensive determination of every proceeding on its merits.  To put the plaintiffs to the cost and expense of again examining these witnesses would be contrary to and the antithesis of Rule 1(5).

[35] Rule 40(4) refers to transcripts of other evidence.  The plaintiffs in this case wish only to put into evidence those parts of the transcripts which assist their case.  While admission of only a portion of the evidence may be objectionable in other circumstances, such as when the witness is deceased, I will allow the plaintiffs in this case to submit only portions of the transcript, subject to the defendants’ right to request that other parts of the discovery that are reasonably connected to those portions already introduced be also put into evidence:Foote v. Royal Columbian Hospital, (1982) 38 B.C.L.R. 222 (S.C.).

[36] Accordingly, the plaintiffs can read into evidence, pursuant to Rule 40(4), portions of the examinations of Mr. Leffert and Mr. Uthe.  That evidence will become evidence at large and will be admissible for and against all parties. The plaintiffs must 14 days prior to trial specify the part of the discovery evidence that they intend to be given at trial.  The remaining GM defendants will have the right to request that other parts of the discovery that are reasonably connected to those parts given in evidence also be put into evidence.

Now to continue my effort to cross reference civil procedure cases that I write about with the soon to be in force New BC Supreme Court Civil Rules.

Rule 40(27) will be replaced with the new Civil Rule 12-5(46).  With respect to the restriction of who the discovery evidence can be used against, the new rule seems to be in line with the current rule.

Rule 40(4) is replaced with Rule 12-5(54) with identical language.  Accordingly, this case should retain its value as a precedent once the new BC Supreme Court Civil Rules come into force.


More on Liability of Registered Owners of Vehicles Involved in Collisions

November 18th, 2009

As I’ve previously written, section 86 of the Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.

Reasons for judgement were released today by the BC Supreme Court interpreting the meaning of ‘consent’.  In today’s case (Morris v. Morris) the Plaintiff was injured when riding as a passenger in a vehicle driven by his brother.  The vehicle was rented from Enterprise Rent-A-Car.   The Plaintiff sued the driver and the rental car company.

The vehicle, however, was not rented to the Plaintiff’s brother, but rather his mother.  The rental contact stated “No Other Driver Permitted“.   Despite this restriction, after renting the vehicle the Plaintiff’s mother let the Plaintiff’s brother drive the vehicle.

The issue at trial was whether, in these circumstances, Enterprise Rent-A-Car could be held liable as registered owner.  A recent case (McEvoy v. McEachnie) held that a registered owner can be held liable in similar circumstances (click here to read my summary of the McEvoy case).  In today’s case, however, Mr. Justice Cole refused to follow the precedent set in McEvoy finding that the judge in that case “failed to consider binding authority“.  In finding the rental company not liable as having not consented to the driver operating the vehicle Mr. Justice Cole summarized the law and distinguished the McEvoy case as follows:

[31] The most recent case from British Columbia dealing with the interpretation of implied consent under s. 86 of the Act, and the plaintiff argues I am bound by that decision, isMcEvoy v. McEachnie, 2008 BCSC 1496 [McEvoy]. In that case, a father gave his daughter consent to drive his vehicle but made it expressly clear that no other drivers were permitted. The daughter subsequently allowed her friend to drive the vehicle, because she was intoxicated, and an accident ensued. In finding the father liable, the Court appliedBarreiro, a case where a rental car employee consented to a vehicle being rented by an underage driver, contrary to company procedure, and interpreted it, at para. 32, to stand for the proposition that:

[32] … so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[32]         The Court in McEvoy concluded that, except for the fact that the father did not obtain a financial benefit from the friend’s possession of the vehicle, the case was not distinguishable from Barreiro. In the present case, other than the fact that the agreement forbidding other drivers was written, rather than oral, the facts cannot be distinguished  from McEvoy. Enterprise freely gave the keys to Ms. Kauth, she freely gave the keys to Mr. Morris, despite expressly agreeing that there would be no other drivers. Enterprise would, on the logic of McEvoy, be taken to have consented to Mr. Morris’ possession of the vehicle and therefore, Enterprise would be vicariously liable pursuant to s. 86 of the Act for any liability that Mr. Morris may have for this accident.

[33]         On its face, it would appear that this decision would be binding on this Court, because the facts cannot be differentiated merely because the agreement in McEvoy was oral and not written. In Hansard, Spruce Mills Ltd., Re (1954), 4 D.L.R. 590 at 592, 13 W.W.R. (N.S.) 285 (B.C.S.C.) [Hansard], the Court held that a trial judge should follow the decisions of his brother judges of the same court unless subsequent decisions have affected the validity of the impugned judgment; it is demonstrated that some binding authority in case law or some relevant statute was not considered; or the judgment was unconsidered, where an immediate decision is given without the opportunity to fully consult authority. If none of these situations exist, barring a distinguishing feature between the facts, a court would be correct in following decisions of a court of the same level.

[34] On the basis of the test set out in Hansard, McEvoy in my view is not binding on this Court as it failed to consider binding authority. In Godsman, Smaldino, Prasad and Louisthe Court refused to find consent where it would not have been given in the circumstances. McEvoy overlooks these decisions and does not consider this test.

[35] The Court instead held the father liable because they interpreted Barreiro to mean that if keys are transferred by free will to the daughter, the father is deemed to consent to subsequent transfers of possession including his daughter’s friend’s possession. However, in Barreiro the company transferred possession to the rental car employee and gave the employee the authority to transfer possession to people wishing to rent the vehicle. Therefore the employee had authority to transfer the vehicle subject to following proper procedures, but in McEvoy the daughter lacked authority to transfer the vehicle.

[36] Furthermore, the Court in McEvoy relied upon Morrison to support the finding of consent. In Morrison, consent was given subject to conditions upon the authorized driver, namely that the company vehicle was not to be operated by an employee for personal use. These conditions were breached, but the Court held that the conditions did not vitiate the consent. In McEvoy, the Court interpreted “no other drivers” as a condition. However, in my view there is a distinction between no consent at all and consent subject to conditions. The Court should first find implied consent exists on all the circumstances and then apply Morrison to any conditions added to that implied consent: K.T. v. Tran, 2007 ABCA 13, 280 D.L.R. (4th) 142.

[37] Had the Court in McEvoy considered Godsman, Smaldino, Prasad and Louis, the result may have still been the same on the second ground for finding consent, stated by Mr. Justice Rogers, but not on the first. Based on Godsman, Smaldino, Prasad and Louis, consent can only be implied if it would have been granted as a matter of course in the circumstances. In McEvoy, the father’s purpose in telling the children to not let others drive his cars was not to limit his statutory liability as the car’s owner, but because he trusted his kids but not their friends and he wanted to keep his children and his cars safe. It could be argued that the father in McEvoy would have consented in the circumstances to the friend driving because his daughter was intoxicated and he would want the car and his daughter home safely. On the present facts, like in Prasad, it is hard to imagine that Enterprise would have given consent in the circumstances.

[38] The trend in our jurisprudence tends to be more restrictive than the broad policy approach that is taken in some United States jurisdictions and in some degrees by the Alberta courts. I am satisfied that the test for implied consent in British Columbia is whether the owner would have consented in the circumstances:  Godsman, Smaldino, Prasad and Louis. Based on the facts of the present case, there was no express consent given by Enterprise to Mr. Morris and in my view, it is clear that consent would not have been given in the circumstances. Enterprise did everything possible to limit its liability and if its liability is to be extended in any event, to prefer the protection of third parties, then that is the job of the Legislature to rewrite the wording of the statute.

[39] I therefore dismiss the action against the defendant Enterprise and they are entitled to their costs.

I understand that the McEvoy case is going to be heard by the BC Court of Appeal in the near future and the law of ‘consent’ with respect to registered owner liability should hopefully be more clear after they weigh in on this issue.


ICBC Injury Claims and the "Volenti" Defence

November 18th, 2009

Volenti Non Fit Injuria is a Latin phrase which generally means that a plaintiff cannot sue a defendant where the Plaintiff has consented to or willingly accepted the risk of harm.   The Volenti Doctrine, when used successfully, can be a complete defence to a personal injury lawsuit.

The Volenti defence has been raised many times in ICBC Injury Claims where a passenger rides with a knowingly impaired driver who then loses control and injures the passenger.  Our Courts have severely limited the effectiveness of this defence over the years and reasons for judgement were released today demonstrating the difficulty is successfully arguing this defence.

In today’s case (Shariatmadari v. Ahmadi) the Plaintiff was severely injured when the driver of her vehicle lost control in Stanley Park, left the roadway and hit a tree.  The Defendant was drinking prior to losing control.  The claim went to Jury Trial and ICBC, on behalf of the Defendant, tried to raise the Volenti Defence.

Madam Justice Fenlon refused to put the defence to the jury finding that the evidence required for the defence to succeed was not present in the case at hand.  In coming to this conclusion she summarize the Volenti Defence in impaired driving cases and applied it as follows:

[3] The third party, Insurance Corporation of British Columbia (“ICBC”), who is defending this case on behalf of the deceased driver, wished to lead evidence of excessive drinking by the plaintiff, defendant, and mutual friends several nights a week for some time prior to the accident. ICBC also sought to lead evidence of the plaintiff occasionally driving following such evenings or letting the defendant drive her vehicle. They argued that this evidence, in conjunction with the fact that the plaintiff and defendant had a close personal relationship and were both driving impaired before the accident, will support a finding by the jury of a tacit agreement between the parties to assume any risk that might arise in relation to such driving – a finding which would support the defence of volenti non fit injuria.

[4] Counsel for the plaintiff offered to have the plaintiff testify on a voir dire to permit counsel for ICBC to argue the appropriateness of putting the volenti defence to the jury based on the actual evidence that could be elicited from the plaintiff. The third party was of the view, with which I agreed, that they could argue the appropriateness of putting the defence ofvolenti non fit injuria to the jury based on their “best case scenario”. I heard argument on that basis.

[5] Counsel for ICBC candidly acknowledged that in cases involving a plaintiff riding with an impaired driver, volenti is a difficult defence to prove in light of recent cases on the issue. In Hall v. Hebert, [1993] 2 S.C.R. 159 at 207, 101 D.L.R. (4th) 129, Cory J. in concurring reasons noted that the maxim volenti non fit injuria “stands for the proposition that no injury is done to one who consents.”  He stated the following at 207-208:

In order for the doctrine of volenti to apply, there must be either an express or implied assumption of the risk of the activity which caused the damage. That is to say, both parties to the activity must have agreed that they would participate in it regardless of the risk of injury and give up their right to sue should injury occur as a result of the agreed upon activity. It must be observed that the consent goes to the legal as opposed to the physical risk of harm (see Lehnert v. Stein, [1963] S.C.R. 38).

The volenti defence acts as a complete bar to recovery. Although it has not been the subject of legislation, it has been very severely limited in its application. Perhaps the judicial limitation was well merited in light of the harsh academic criticism of the defence. See Prosser, supra, at p. 454. Before it can operate as a defence, the plaintiff must not only consent to accept the risk of harm but also must bargain away his or her right to sue for injuries that may result from the dangerous activity. The doctrine will only be applied where it can truly be said that there is an understanding on the part of both parties that the defendant assumed no responsibility to take care for the safety of the plaintiff and the plaintiff did not expect him or her to do so. Clearly, the volenti defence will only be applicable in a narrow range of cases.

[6] In Joe v. Paradis, 2008 BCCA 57, 290 D.L.R. (4th) 556, the plaintiff had persuaded the defendant to drive him to a pub to obtain beer. Both parties were heavily intoxicated and the defendant drove off the road, injuring the plaintiff. The plaintiff’s action for damages was dismissed by a jury on the basis of the volenti defence. The issue before the British Columbia Court of Appeal was whether the defence of volenti non fit injuria should have been put to the jury. At para. 13, Mackenzie J.A. writing for the Court said:

[13]      There is no evidence of any express agreement between Mr. Joe and Mr. Paradis to absolve the latter from legal liability for negligent driving. The first issue is whether there was evidence from which a properly instructed jury could find an implied agreement to that effect. The first and third issues are inter-related: if there was no evidence to support the defence, the jury verdict is unsupported by evidence and therefore perverse.

[7] He noted further at paras. 16-22:

[16]      Commentators are generally critical of the volenti doctrine, particularly its application to passengers in motor vehicle accident cases: see, for example, G.H.L. Fridman,The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002); Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: Butterworths, 2002); Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003); John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998); and Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006). Clerk & Lindsell on Torts points out that volenti’s complete bar to recovery is inconsistent with comparative negligence statutes which allow the apportionment of responsibility and “a more finely adjusted justice between parties” (at §3-103). Professor Klar observes that the nominal standard of an implied waiver of legal liability will rarely be met, if taken seriously. He adds: “It is not realistic to impose this implied agreement upon parties who are frequently unaware of the legal niceties surrounding these types of events, and who are not deliberating upon the physical or legal risks of dangerous conduct” (at 482). It would be hard to find parties who better fit Professor Klar’s description than Mr. Joe and Mr. Paradis.

[20]      Interjecting the volenti defence short circuits the process and invites the jury to use the defence as a subterfuge to assign all responsibility for the accident to Mr. Joe notwithstanding that the theoretical basis of the doctrine, an implied agreement to waive legal liability, may be unsupported by the evidence. Unless the courts are prepared to condone the manipulation of the volenti doctrine to avoid the comparative fault regime of the Negligence Act, volenti should not be invoked unless there is evidence that the parties put their minds to the question of legal liability and expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[21]      The weight of Supreme Court of Canada jurisprudence and the critical commentaries support restricting the doctrine to cases where an agreement can be supported by the evidence. This case was not one of them.

[22]      The question left with the jury failed to clearly distinguish between the physical and legal risk of harm. The judge’s charge attempted to explain the distinction, but essentially in a vacuum as to evidence supporting acceptance of the legal risk of injury in contrast to the physical risk. Voluntary acceptance of the physical risk without acceptance of the legal risk is a contributory negligence issue and not volenti. [Emphasis added]

[8] In my view, even assuming the defendant’s best case scenario on the evidence elicited at trial, there is no evidence to support the plaintiff’s waiver of her legal right to sue for injuries, as distinct from evidence to support a willingness to assume the risk of injury itself. There is no evidence that the plaintiff and defendant turned their minds to the question of legal liability, and either expressly or tacitly made an agreement to waive liability that could be supported on basic contract law principles.

[9] In conclusion on this point, there is no evidence to support the defence of volenti; therefore that defence should not be put to the jury.

The Court did, however, go on to permit the Jury to hear evidence of the Plaintiff’s level of intoxication finding that “ here the evidence establishes that the plaintiff and defendant were together drinking over the evening and consuming roughly the same number of drinks (the evidence in this case), the level of the plaintiff’s intoxication is also relevant to her awareness of how intoxicated the defendant was at the time she let him drive her car.”.  Madam Justice Fenlon held this evidence was relevant in deciding whether the Plaintiff was ‘contributorily negligent‘ for riding as a passenger with a driver who had been drinking.


Jury Instructions For ICBC Injury Claims With Multiple Years of Past Wage Loss

November 17th, 2009

If you have an ICBC Injury Claim heading for a Jury Trial reasons for judgement were released today demonstrating an effective ‘charge‘ to the Jury where multiple years of past income loss are at issue.

Section 98 of the BC Insurance (Vehicle) Act limits past income loss awards to ‘net’ income loss in negligence claims stemming from BC motor vehicle collisions (Click here to read my previous post on this topic for some background).   This limitation in law can significantly reduce a Plaintiff’s damages in a BC Injury Claim and reasons for judgement were released today demonstrating this.

In today’s case (Wittenberg v. Ellis) the Plaintiff sued for damages as a result of a 2005 car crash.  After a jury trial damages of over $2 Million dollars were awarded which included an award for $1,420,000 in past income loss.  The court was asked to make the appropriate deduction under s. 98 of the Insurance (Vehicle) Act and ultimately decided that the past wage loss had to be reduced by $594,774 in order to comply with the legislation.

In a recent case by the BC Court of Appeal (Lines v. Gordon) the Court clarified how past income awards by juries will be taxed to comply with section 98.  Specifically the Court of Appeal held that “There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred.

Today’s case demonstrates keen trial skills by the Plaintiff’s lawyer as he asked the judge to instruct the Jury to focus on the claimed income loss on a year by year basis.  The Jury did indeed award damages on a year by year basis.  As a result Madam Justice Boyd was able to assess the income tax consequences for each year.  If the Plaintiff’s lawyer was not savvy enough to get this instruction the Jury could have awarded the past income loss as a lump sum and the award could have been taxed as if the money was all earned in one tax year.  This would have resulted in a significantly greater reduction for the Plaintiff.

This case also addressed whether a personal plaintiff can use a corporate tax rate when there is evidence that the past income claimed would have been earned through a corporation.  Madam Justice Boyd held that s. 98 does not permit this and Plaintiff’s need to have past income taxed based on personal tax rates, specifically she held as follows:

[39] I agree with the defence submission that this is the exact result which would occur if the plaintiff at bar is permitted to rely on a corporate tax rate for the bulk of his income loss award.  Like the RRSP deduction, corporate tax rates offer the deferral of the personal tax burden, but only until the owner/shareholder withdraws the corporate funds for personal use, at which time personal income tax must be paid on the funds.  As the award for net income loss will be paid to Mr. Wittenberg and not to his corporation, in effect, it will be as if earnings had been withdrawn from the corporation and taken into Mr. Wittenberg’s personal income.

[40] Permitting the plaintiff to rely on corporate tax rates for part of his income loss award in this case would enable him to avoid entirely his statutory obligation to pay personal income tax rates on personal income theoretically drawn from the corporation.  The result would be over-compensation.  Such an outcome would consequently place Mr. Wittenberg in a better position than he would have been in if he had not been injured.  In my view, this result is impermissible under the Insurance (Vehicle) Act, income tax legislation, and the general principles of damage assessment noted above.

[41] The correct approach is for the jury award for past income loss to be taxed at the personal income tax rate, as required by s. 95 of the Act.


ICBC Injury Claims and Relevance of Minimal Vehicle Damage

November 17th, 2009

Further to my numerous previous posts on Low Velocity Impacts (LVI Claims) reasons for judgement were released today by the BC Supreme Court dealing with the relevance of photographs depicting minimal vehicle damage in Injury Litigation.

In today’s case (Deventer v. Woods) the Plaintiff was involved in 3 rear-end collisions.  Fault was admitted for all three crashes.   The Plaintiff claimed she was injured as a result of these crashes.  The matter was set down for a Jury Trial (ICBC normally sets LVI cases for Jury Trial) and proposed to put photos which ‘show very little damage to an of the cars involved’ to the Jury.

The Plaintiff objected arguing that the photos were not relevant.  Madam Justice Fenlon disagreed with the Plaintiff and allowed the photos to be put to the Jury.  In coming to this conclusion Madam Justice Fenlon referred to and summarized 2 previous authorities dealing with this issue at paragraphs 8-13 and went on to hold as follows:

[14] In any event, I am of the view that photographs showing the extent of the damage to the vehicles in this case are relevant and therefore admissible. They are relevant because it is a matter of common sense and common understanding that the greater the force with which two vehicles collide, the more likely it is that occupants of those vehicles will be injured. The relationship between increased force and damage and increased probability of injury does not mean that parties involved in lower impact collisions that do not cause very much damage to the vehicles involved cannot suffer significant injuries. Many cases have recognized that serious injuries can result from collisions involving little or no damage, as Mr. Justice Thackray observed in Gordon.

[15] In Brar v. Johal, 2002 BCSC 150, Mr. Justice Cohen, at para. 11, held that the onus would be on the defendant to lead engineering or medical evidence to support the submission that a plaintiff’s injuries are inconsistent with the force generated by the impact between two vehicles.

[16] The relevance of photographs showing the extent of damage to the plaintiff’s and defendants’ vehicles can be tested by considering photographs of highly damaged vehicles. It would be hard to imagine plaintiff’s counsel in such a case arguing that photographs of the damage were not relevant to the issue of whether the plaintiff suffered injuries in the accident.

[17] I have considered whether the probative value of the photographs in this case is outweighed by their prejudicial effect on the jury’s assessment. For the reasons set out inMakara by Mr. Justice Barrow, I am of the view that such prejudice can be adequately addressed by way of appropriate instructions to the jury. Such directions would not simply be to ignore the photographs, as plaintiff’s counsel argued, but rather, a direction to put the pictures into the context of the evidence as a whole. The pictures are one piece of evidence about the impact and the vehicles, as is the plaintiff’s evidence.  There would also likely be a direction that the fact that no or little damage has occurred to vehicles does not mean that a plaintiff cannot be injured.

[18] In conclusion on this issue, the photographs are admissible, subject to objections about their authenticity or accuracy.

Another intresting aspect of this judgement is the Court’ discussion of the Plaintiff’s financial status.  The Defendants wished to highlight certain elements of the Plaintiff’s finances in support of an argument that  “such information is relevant in assessing the quantum of damages for future wage loss because that information provides the context within which the jury must determine whether the plaintiff would have worked full-time in the future if the injuries sustained in the accident had not occurred.”

Madam Justice Fenlon agreed that such evidence is admissible in addressing a claim for future wage loss holding that:

[35] The plaintiff argues that the cases cited by the defendants in which a plaintiff’s financial circumstances were considered in relation to future wage loss were not jury cases. However, if the plaintiff’s financial circumstances are relevant to the assessment of future wage loss in a judge alone case, they are also relevant in a jury trial. The only additional question on a jury trial is whether the prejudicial effect of such evidence outweighs its probative value. The concern raised by plaintiff’s counsel, and it is a real concern, is that the jury may assume that because the plaintiff is relatively well-off she does not need to be compensated for future wage loss and they may reduce their awards for general and special damages as well. That would indeed be improper, but as I stated in relation to this issue on the admissibility of the photographs, I am of the view that the jury can be properly instructed to avoid this error and can be trusted to properly assess damages.

[36] In the circumstances of this case, I find that the probative value relating to the life insurance proceeds and the absence or existence of a mortgage outweighs the prejudicial effect of such evidence. However, I also find that the value of the new family home has such little probative value in relation to the propensity of the plaintiff to be working full-time or part-time that it is outweighed by the prejudicial effect of such evidence. I would therefore disallow that evidence.

[37] In conclusion on this issue, evidence relating to life insurance proceeds received, the payout of the mortgage on the family home at the time as a result of another life insurance policy, the existence of a current mortgage, and other evidence of that nature is admissible. Evidence regarding the value of the home the plaintiff is currently living in is not.