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 March, 2010

Uncontrolled Intersection Crashes, Who's At Fault?

March 30th, 2010

When two vehicles enter an uncontrolled intersection at approximately the same time and a collision occurs, how do you determine who’s at fault?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of the law.

In today’s case (Vagramov v. Zipursky) the Plaintiff was involved in a 2004 car crash in Vancouver, BC.  The Plaintiff entered an uncontrolled intersection and collided with the Defendant’s vehicle which was attempting to cross the intersection at the same time.  Mr. Justice Gaul found that the Defendant was 100% responsible for the collision.  In doing so the Court provided the following useful summary of some of the legal principles that come into play in BC uncontrolled intersection crash lawsuits:

[129] The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the manner in which automobiles are driven on the roadways of our province. Section 144 of the MVA deals with the issue of careless driving, stating:

(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.

[130] Section 173(1) of the MVA sets out the statutory rules of the road for vehicles that approach an uncontrolled intersection of the nature present in the case at bar.  That section provides:

Except as provided in section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.

[131]     The law relating to the duties of motorists as they approach uncontrolled intersections was set out in the seminal case of Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) [Brownlee].  The following observations of  Mr. Justice Cartwright, at 461, are apposite to the case at bar:

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[132]     Another oft-cited case in the area of the duty of servient drivers is the Manitoba Court of Appeal decision in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 (Man. C.A.) [Scheving].  In his written reasons for a unanimous court, Mr. Justice Schultz articulates the appropriate principles to follow in cases such as the one presently before the court, at 358-359:

I think it fair to infer that this provision [the section of the Manitoba Highway Traffic Act that is similar to s. 175(1) of the BC Motor Vehicle Act] was made for the purpose of controlling automobile traffic, the speed of which makes impractical and ineffective a rule giving priority to whichever vehicle first reaches an open intersection. It need hardly be emphasized that inevitably there is confusion and great danger inherent in races to get to such an intersection, underlining the necessity for the present right-of-way rule. The word “approximately” as used in the above subsection means “about” or “nearly” and is the direct opposite of “exactly” or “precisely”. Therefore a vehicle approaches an intersection “at approximately the same time” as another vehicle if it approaches slightly before or slightly after such vehicle. Because the vehicle from the left reaches the intersection first — momentarily or a fraction of a moment ahead of the vehicle from the right– it cannot be said that the vehicle from the right has not approached it at “approximately” the same time.

What may be referred to as the old rule — that the car first reaching the intersection has the right-of-way — may properly be applied under certain circumstances. Thus, When the vehicle on the left reaches an open intersection substantially in advance of the vehicle on the right, i.e., where the vehicle on the right is at such a distance and travelling at such a speed that there is no reasonable danger–no apparent danger–of collision to be apprehended if the driver on the left proceeds into the intersection, then, under such circumstances, the driver on the left can with safety and with reason proceed into the intersection. However, it is obvious that under such circumstances, there being no question of precedence involved, there is no question of right-of-way involved either.

Prior entry into an intersection does not mean priority by a matter of a few feet or by a fraction of a second ahead of another vehicle; it means entry into an intersection with the opportunity of clearing it without obstructing the path of another vehicle under normal circumstances. “Who hit whom” is not the test.  The driver on the left, even though he may reach the intersection first, must yield the right-of-way to the driver on the right where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continue the same course at the same speed.


BC Civil Sexual Abuse Lawsuits – A Video Discussion

March 30th, 2010

Here is a video I recently uploaded to YouTube providing a brief overview of some of the unique legal issues that provide an advantage to abuse victims when suing in the BC Civil Courts:

Last month I authored a handful of articles discussing some of the unique laws that apply to Civil abuse claim lawsuits.  These include the law of limitation periods, the law of non-pecuniary damages, and the law of vicarious liability.

Due to some of the positive feedback I received after authoring these articles I thought it may be helpful to summarize some of my advice in this brief video.  I hope this video and these articles are of some assistance.


Losing Your Case With Your Own Evidence – More on Effective Cross Examinations

March 30th, 2010

One of the most powerful tools a trial lawyer has is cross-examination.  In cross examination a lawyer can pose leading questions forcing a witness to agree or disagree and in doing so the lawyer seeks to get admissions that help his client’s case or hurt his opponent’s case.

In pre-trial examinations for discovery a lawyer has the right to ‘cross-examine‘ the opposing party.  By that I mean a lawyer is permitted to control the examination with leading questions.  If done effectively damage can be done to the your opponents case.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating the results of a persuasive cross examination.

In today’s case (Mann v. Rainsford) the Plaintiff was injured while viewing a neighbour’s open house.  As the Plaintiff was leaving the house she mis-stepped on a concrete slap (basically a step) along a pathway from the home to the sidewalk.  Having mis-stepped the Plaintiff fell and was injured.  She sued the home-owner claiming that this concrete slab was a hazard and that steps should have been taken to guard against this injury.

Mr. Justice Wilson of the BC Supreme Court disagreed and dismissed the Plaintiff’s lawsuit.   The Court noted that the Plaintiff’s injuries “were caused solely by her own inattention“.  The Court reached this decision largely by the Plaintiff’s own evidence which was given at examination for discovery.  The Plaintiff’s evidence clearly had a damaging impact on her case and the discovery exchange is worth reviewing for anyone learning about cross examination in personal injury lawsuits.  The damaging cross examination was as follows:

[29] The plaintiff explained the mechanics of the incident, at her examination for discovery, as follows:

92   Q  Tell me what you did when you left the house.

A   I walked out of the front door and I stepped down the first step.  And I remember I was looking at the garden.  And I tripped.  And I went to grab the handrail, but there was no handrail there and I fell forward down the step.

96   Q  You said you were looking at the garden?

A   Mm-hmm, yes.

97   Q  Which area of the garden were you looking at?

A   On the left-hand side coming out.

98   Q  So the right-hand side of the photograph, you were looking over that way?

A   Yes.

100 Q  You didn’t slip on anything, is that right?

A   No.

101 Q  And you didn’t trip on anything, did you?

A   No, there was no object there.

102 Q  You misstepped, is that right?

A   Yes.

128 Q  So you stepped off the landing onto –

A   The step, yes.

129 Q  — down the first step, and you did that fine.

A   Yes.

130 Q  So you got down onto, say, the second landing?

A   Yes.

131 Q  And then you went forward?

A   Yes.

132 Q  And then what happened?

A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

A   Yes.

137 Q  Why did you fall?  Do you know why you fell?

A   It wasn’t a normal configuration of steps going down, so I missed it.

138 Q  You just went up it 30 minutes earlier.

A   That’s correct.

139 Q  So you knew that there was a step and a landing and another step and a landing from when you just went up 30 minutes earlier, right?

A   I saw it as I went up, but I wasn’t looking at the stairs as I came down, because I don’t normally have to look and check to see where the steps are when you’re going down.

140 Q  You knew that this isn’t a staircase like at your house.  You knew that when you got there and you knew that when you went to go up into the house, right?

A   I saw it when I went up.

141 Q  So you knew that there were landings in between the steps and that you would have to walk to get to the next step, right?

A   Yes.

142 Q  I’m just trying to find out what was surprising to you that it was the same on the way out as it was on the way in.

A   I guess I hadn’t recalled the configuration when I left.

144 Q  So it was the same on the way out as it was on the way in?

A   Yes.

145 Q  It was simply just that you misstepped when you left the house, isn’t that right?

A   That’s correct, yes.

When preparing for discovery or trial you need to know that the defence lawyer will try to harm your case and must be prepared for a leading cross examination.  If not, you risk causing significant and possibly preventable damage to your claim.


More on ICBC Injury Claims and the "Implied Undertaking of Confidentiality"

March 29th, 2010

As I’ve previously written, when a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.

In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a law known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order.  Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, dealing with this area of the law.

In today’s case (ICBC v. Titanich) the Defendant was involved in a motor vehicle accident and apparently injured another party named Swan.  Swan sued the Defendant.  ICBC apparently held that the Defendant was in breach of his policy of insurance and defended the lawsuit as a ‘statutory third party‘.  ICBC obtained a Court Order for disclosure of the RCMP records relating to the accident and then settled the Plaintiff’s personal injury lawsuit for some $346,000.  ICBC then sued the Defendant to recover the $346,000 on the basis that they alleged he was in breach of his insurance.

ICBC apparently relied on some of the information obtained in the RCMP files to base their decision to pursue the Defendant for repayment of the $346,000.  The Defendant brought a motion to dismiss the lawsuit arguing that ICBC “breached its implied undertaking of confidentiality in relation to the documents it obtained from the RCMP“:.

The Court ultimately dismissed the motion holding that while ICBC did indeed breach their implied undertaking, no remedy was necessary since ICBC would be granted judicial permission to use the RCMP records in the current lawsuit had they brought a motion seeking such an order.  In reaching this conclusion Mr. Justice Barrow summarized and applied the law of the “implied undertaking” as follows:

[13]        In Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8, Binnie J. addressed the scope of the implied undertaking and its underlying rationale. At para. 4, he wrote:

[4]        Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.

[Emphasis in the original]

[14]        The rationale for the rule is, in part, to promote complete and candid oral and documentary discovery which, in turn, advances the orderly and effective administration of justice. It does that by providing the litigant making discovery with some confidence that the material produced will be used only for the purpose of securing justice in that proceeding.

[15]        Given this rationale, it is worthy of note that the discovery in issue in the matter at hand did not emanate from a party to the litigation. It does not consist of either oral or documentary discovery produced by Mr. Spinks. It is, rather, information gathered by the police in a process entirely independent of this litigation. I note this not because it necessarily follows that documents produced by third parties are not subject to the implied undertaking but rather because it is a factor that may be taken into account in determining whether a remedy ought to be granted…

[17]        The next issue is whether the plaintiff has used the discovery. The “use” that the plaintiff has made of the information is limited to listing those documents in a list of documents. That constitutes “use” within the meaning of the rule (Chonn v. DCFS Canada Corp. dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at paras. 47?52).

[18]        Assuming that the undertaking extends to documents produced by third parties to earlier litigation but relating to the conduct or affairs of a party to that litigation, I am satisfied that the plaintiff breached the implied undertaking.

[19]        In Juman, Binnie J. wrote this about the range of available remedies for breach of the implied undertaking:

[29]      Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court…

Further, it may be that the breach can be remedied by precluding the party in breach from using the evidence in question. That was the remedy applied in Edgeworth Construction Ltd. v. Thurber Consultants Ltd., 2000 BCCA 453, 78 B.C.L.R. (3d) 200.

[20]        Another possible remedy, and the one sought in Chonn is removal of counsel of record for the party in breach…Voith J. concluded that the defendant was in breach of the implied undertaking but declined to grant a remedy. In doing so, he made four points. First, he noted that the documents were relevant. Second, he observed that had the defendant applied to obtain the court’s leave to make use of the documents, leave would have been granted. Third, he noted that although counsel ought to have made an application, his error was not, in all the circumstances, serious. Finally, and largely as a result of the above, there was no prejudice to the plaintiff. As a result, he ordered that the plaintiff produce the documents and that the defendants were at liberty to use them.

[21]        The same four observations apply in the case at bar. The documents are relevant. The outcome of an application to be relieved of the implied undertaking, had it been made, is predictable. Binnie J. commented on the manner in which a court’s discretion might be exercised when faced with such an application. At para. 35, he wrote:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted…

The example posited is this case. Next counsel’s conduct in this case is, if anything, less serious than that in Chonn. As in Chonn, plaintiff’s counsel in the present case raised the issue of the implied undertaking in his first conversation with Mr. Titanich’s lawyer. In doing so, he noted that he was of the view that he required the consent of the plaintiff in the previous action before disclosing the documents. He did not suggest that he needed Mr. Titanich’s consent presumably because Mr. Titanich was not a party of record in the earlier action. Mr. Titanich’s counsel did not suggest otherwise. She simply asked that the documents be forwarded to her. The understanding that Mr. Spinks had from the conversation with Ms. Roy was that they would each list the documents and that all he needed to do was obtain the consent of the plaintiff in the previous action. He obtained that consent and listed the documents.

[22]        Although for the reasons indicated, I think Mr. Spinks was required to obtain the consent of Mr. Titanich, in concluding otherwise, he was not acting in a cavalier manner but was rather proceeding carefully and on the basis of an analysis that appeared to have been shared Mr. Titanich’s own lawyer.

[23]        In all of these circumstances, there is, in my judgment, no need for any remedy.

While ICBC was not penalized for breaching the implied undertaking this case serves as a reminder that lawyers must respect the limits the law imposes on the use of documents which come within their possession through the compelled disclosure of the BC Rules of Court.  Failing to heed these restrictions can result in severe consequences as outlined in today’s case including removal from the case, exclusion of evidence or even dismissal of a lawsuit or a defence


Started a Lawsuit? Don't Forget to Serve the Defendant

March 29th, 2010

When you start a lawsuit in the BC Supreme Court you need to serve the filed Writ of Summons on all Defendants within one year.  Failure to do so could result in a dismissal of your claim and reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.

In today’s case (Mackie v. McFayden) the Plaintiff was involved in a 2005 BC Car Crash.  The Plaintiff was allegedly injured in this crash and he sued the owner and driver of the other vehicle.

After the lawsuit was started the Plaintiff served the driver of the other vehicle.  However, the Plaintiff never served the Writ of Summons on the Defendant owner.   Some two years passed and still service was not affected.  The Defendant owner brought a motion to dismiss the Plaintiff’s lawsuit.  The Plaintiff brought a counter motion to renew the now expired Writ of Summons seeking permission to serve the document if renewed.

Master Bouck refused to renew the expired Writ of Summons and ordered that the lawsuit against the other vehicle owner be dismissed for “want of prosecution“.  In doing so the Court summarized and applied the law relating to renewing an expired writ of summons as follows:

[19]        The law regarding the renewal of the writ is relatively straightforward. Five factors are to be considered:

1. Whether the application to renew was made promptly;

2. Whether the defendant had notice of the claim before the writ expired;

3. Whether the defendant is prejudiced;

4. Whether the failure to effect service was attributable to the defendant; and

5. Whether the plaintiff, as opposed to his solicitor, is at fault.

Imperial Oil Ltd. V. Michelin North America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).

[22]        In this case, the application for renewal of the writ was not made promptly. The writ expired in April 2008; the application for renewal was made eighteen  months later.

[23]        There is no evidence to suggest that Ms. McFayden has had notice of this claim.

[24]        Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC will defend the claim, it may seek indemnification for damages paid to the plaintiff.

[25]        Whether or not that is the case, prejudice may be presumed simply by the passage of time without the defendant McFayden having to prove actual prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37 B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for nearly three years.

[26]        There is no evidence that the failure to renew the writ is the fault of the defendant McFayden.

[27]        On the other hand, it would appear that the plaintiff’s solicitors (as opposed to the plaintiff) neglected to proceed with the application to renew the writ. Importantly, no explanation whatsoever is offered for this delay. The plaintiff may have his own remedy in these circumstances: Skolnick v. Wood, [1981] 2 W.W.R. 649. However, given the defendant Olson’s position that there is no cause of action against Ms. McFayden, the plaintiff may not need to seek such relief.

[28]        Balancing all of these factors, I am persuaded that the writ should not be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.

The Court went on to hold that, even if this decision was wrong, the lawsuit against the vehicle owner should be dismissed for want of prosecution.  In doing so Master Bouck noted as follows:

[34]        The plaintiff has known since July 2007 that he required an order for substitutional service in order to proceed with the action. He did not pursue such an order for more than two years. Admittedly, the plaintiff attempted service (thanks to the defendant Olson’s information) in early 2009. However, by that time, the plaintiff (or at least his solicitor) should have been well aware that any application for renewal of the writ (and an order for substitutional service) must be pursued forthwith. Instead, such an application did not occur for another ten months. It is reasonable to infer  that the plaintiff’s application for this relief is merely reactive to the defendant’s motion.

[35]        There is no explanation or excuse offered for the delay.

[36]        Prejudice is presumed. No evidence is presented to rebut that presumption.

[37]        In the result, the action against Ms. McFayden is dismissed for want of prosecution.

The lesson to be learned from today’s case is that just because a lawsuit is filed within the appropriate limitation period doesn’t mean that the Plaintiff’s right to proceed with the lawsuit will continue indefinitely.  If the  lawsuit does not move forward with reasonable diligence a Plaintiff runs the risk of having their case dismissed.

Now to cross reference.  As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Under the New Rules the “writ of summons” has been abolished.  However, the originating document in a personal injury lawsuit still needs to be served on Defendants within one year and the Court’s ability to renew the document and to dismiss a claim for want of prosecution remain intact.  Accordingly this case will likely retain its value as a precedent after the new rules come into force.


How Much Is My BC Injury Claim Worth? – A Video Discussion

March 28th, 2010

Here is a video I recently uploaded to YouTube discussing some of the factors that go into valuing a BC Personal Injury Tort Claim:

One of the most frequent questions I’m asked as a BC Personal Injury Lawyer is ‘how much is my claim worth?’.

This is an important question for anyone injured through the fault of another in British Columbia.  When negotiating with ICBC (or another Insurance company) the playing field is typically imbalanced in that the Claims Adjuster has lots of experience in valuing personal injury claims.   Unless you are an injury claims lawyer you understandably would have little experience in valuing these claims and may need help valuing your losses.

It is important to empower yourself for the negotiation because in tort claims the insurer is negotiating on behalf of the person that injured you.  With this in mind, here is a brief video introduction discussing some of the common ‘heads of damages‘ that are frequently addressed in BC personal injury lawsuits.  I hope this information is of some assistance and helps to balance the playing field.


More on ICBC Injury Claims and Video Surveillance; "Golden Years" Doctrine Discussed

March 26th, 2010

As I’ve previously written, video surveillance in and of itself does not harm a persons ICBC claim, being caught in a lie does.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this fact.

In today’s case (Fata v. Heinonen) the Plaintiff was involved in a 2006 BC collision.  Fault was admitted.  The Plaintiff suffered several injuries including “an obvious impingement syndrome at the shoulder“.  The Defendant disputed the severity of the Plaintiff’s injuries at trial.  Instead of relying on independent medical evidence, the Defendant sought to harm the Plaintiff’s case by relying on video surveillance which was taken the year following the collision.

The surveillance showed the Plaintiff doing various activities such as grocery shopping and unloading and loading objects into his vehicle.  This video surveillance did not harm the Plaintiff’s claim.  Why?  Because it did not show anything that contradicted the Plaintiff’s evidence at trial.  In explaining why the surveillance did not harm the Plaintiff’s claim Madam Justice Griffin held as follows:

[45] The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

[46] I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

The Court went on to award the Plaintiff $45,000 in non-pecuniary damages for his soft tissue injuries and shoulder impingement.

This case is also worth also worth reviewing for the Court’s explanation of the “Golden Years” doctrine.

  • The “Golden Years Doctrine” Explained

In personal injury claims BC Courts recognize that no two cases are exactly alike and the assessment of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) depends on the unique facts of any given case.

One principle that is sometimes used in assessing non-pecuniary damages is the “Golden Years” doctrine.  This principle recognizes the fact that the retirement years are particularly special and an injury affecting a person in their golden years may warrant a greater award for non-pecuniary damages.  Madam Justice Griffin succinctly summarized this principle as follows:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89] In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

[91] On the facts of this case, where Mr. Fata has suffered a loss of some enjoyment of life in every aspect of his life, I conclude that an appropriate award for non-pecuniary damages is $45,000.


A Caution to BC Vehicle Owners – Take Care in Who You Lend Your Vehicle To

March 26th, 2010

Reasons for judgement were published this week by the BC Court of Appeal revealing a valuable lesson to registered owners of vehicles.  Owners must take care in choosing who they lend their vehicle to as they can be found personally liable if such a person carelessly injures others while driving or operating the vehicle.

In today’s case (Robert v. Forster) Mr. Forster (the owner of a vehicle) allowed his daughter to use it.  He had rules restricting the scope of this permission, and these were that she “was not to drink and drive” and that “no one other than (the daughter) was to drive the vehicle“.

On June 2004 Mr. Forster’s daughter took the Jeep out.  She has been drinking at a bar.  After leaving the bar the daughter followed the first rule and did not drink and drive, however she broke her father’s second rule and let a friend drive the vehicle.  As the friend was driving the daughter “wrenched the steering wheel to the right” and caused the vehicle to flip into a ditch resulting in injuries to the occupants.

Various lawsuits were brought.  At trial the daughter, despite being a passenger, was found to be “driving” the vehicle.  She was found to be careless in grabbing the steering wheel with a finding that “t]he only conclusion I can come to on the evidence adduced at trial is that (the daughter’s) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel”  The Court went on to find that not only was she liable for the occupants injuries but so was the father as a result of s. 86 of the BC Motor Vehicle Act which holds as follows:

In an action to recover loss or damage sustained by a person by reason of a motor vehicle on a highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor vehicle, is deemed to be the agent or servant of that owner and employed as such, and is deemed to be driving and operating the motor vehicle in the course of his or her employment.

The father appealed arguing he should not be held liable because the daughter was a passenger at the time and therefore could not have been “driving” the vehicle.

The BC Court of Appeal disagreed and dismissed the appeal.  In doing so the BC Court of Appeal made it clear that s. 86 of the BC Motor Vehicle Act is to be given a broad interpretation because it is intended to “expand the availability of compensation to injured plaintiffs).”  Specifically the BC High Court held as follows:

[21] This Court considered the purposes of s. 86 in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, 269 D.L.R. (4th) 727, affirmed 2007 SCC 45. After reviewing the history and context of the section, Madam Justice Newbury commented as follows:

[38] …  the purposes of s. 86 are, I would suggest … to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.

The Court concluded in that case that a proper interpretation of s. 86 created vicarious liability on lessors of motor vehicles whose drivers are negligent in their operation if the drivers are in possession of the vehicle with the consent of the lessors.

[22] In my opinion, the conclusion that Ms. Forster was driving the Jeep is in accord with the grammatical and ordinary meaning of the language of s. 86 and the object and intention of the Legislature in enacting it. The decision in R. v. Bélanger establishes that a person sitting in the passenger seat of a vehicle can be regarded to be driving the vehicle if he or she controls the direction of the vehicle by turning its steering wheel. It is consistent with the first purpose of s. 86 articulated in Yeung v. Au to conclude that the Legislature intended an owner of a vehicle to be vicariously liable if a person, in possession of the vehicle with the consent of the owner, commits a deliberate, but negligent, act affecting the direction of the vehicle that causes injuries to another person.

[23] I therefore agree with the conclusion of the trial judge that Ms. Forster was driving the Jeep for the purpose of s. 86.

  • Implied Consent

Another interesting point of this judgement was the Court’s discussion of whether the Father consented to the daughter’s friend driving the vehicle.   You will recall that one of the clear rules was that only the daughter was allowed to drive, not her friends.  At trial Mr. Justice Rogers held that the father nonetheless consented to the friend operating the vehicle and provided the following reasons:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that 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.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The BC Court of Appeal was asked to overturn this ruling but they refused to do so.  The BC High Court held that, since the driver of the vehicle was not careless (and therefore not responsible for any of the passengers injuries) the issue of whether or not there was consent “is moot and need not be decided on this appeal

You can click here to read my 2008 article discussing the trial judgement.


Can I Fire My Personal Injury Lawyer? A Video Discussion

March 24th, 2010

Here is a recent video I uploaded to YouTube discussing the practical consequences of firing your personal injury claims lawyer in order to hire a new one:

When potential clients approach me telling me they are unhappy with their lawyer and want to fire him/her, my initial advice usually catches them off guard.  My first response is while I would welcome the business they should try to work it out with their current lawyer.

Why would I give potential clients this advice and risk losing their business?  The answer is simple, hiring a second lawyer means paying a second lawyer.  Sometimes the price of hiring a second lawyer to finish one job is not worth it and potential clients are entitled to know the costs of their intended actions.

You can click here to read an article I authored on this subject several months ago.  I hope this video and article are of assistance to people not only considering firing their contingency-based lawyer but useful for people who are looking to hire a contingency based lawyer in the first place.


BC Personal Injury Claims and Reimbursement of "Sick Bank" Time

March 24th, 2010

Many BC employees have the benefit of a “sick bank“.  For those of you not familiar with these, a sick bank is basically a pooled amount of time which an employee is able to be absent from work for sickness and still receive full pay.  Sometimes a sick bank grows over the years of employment provided it is not drawn from.

When you are injured as the result of someone else’s carelessness, become disabled for a period of time and have to use up your “sick bank” are you entitled to recover damages to reflect the value of this used up asset?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.

In today’s case (Burton v. Bouwman) the Plaintiff was involved in a total of 3 motor vehicle collisions.  Following each collision he missed time from work and had to draw money from his sick bank.  In his lawsuit against the at-fault motorists he claimed for various damages including damaged for his depleted sick bank.

The Plaintiff largely succeeded in this claim.  In awarding the Plaintiff compensation for this loss Madam Justice Gray summarized and applied the law as follows:

[157] Mr. Burton is not entitled to receive cash from CSC for unused banked sick leave.  The banked sick leave will only be of value to him if he becomes sick and has insufficient banked sick leave, with the result that he takes an unpaid leave.

[158] There is a real and substantial possibility that Mr. Burton will become sick while still employed by CSC and have insufficient banked sick leave.  Mr. Burton is entitled to compensation to reflect that…

[189] Mr. Burton did not suffer a wage loss as a consequence of the accidents, because he was able to use his banked sick time.  However, he claims lost banked sick leave and annual leave, $21,600 for lost overtime, and an unspecified amount for the past lost opportunity to earn income outside CSC.  The position of the defence is that Mr. Burton should recover nothing for these claims.

[190] As discussed above, Mr. Burton is entitled to be compensated for the loss of his banked sick time.  CSC paid Mr. Burton about $12,000 for his banked sick leave after the First Accident, about $250 after the Second Accident, and about $18,700 after the Third Accident.  That is a total of about $30,950.

[191] The method of compensating a continuing employee for loss of sick bank credits was discussed in Bjarnson v. Parks, 2009 BCSC 48, and the cases cited in it.  In that case, and in Roberts v. Earthy, [1995] B.C.J. No. 1034 and Choromanski v. Malaspina University College, 2002 BCSC 771, the court awarded the full amount of salary corresponding to the banked sick leave, without making any deduction for contingencies.  Other cases cited in Bjarnson made such a deduction.

[192] I would assess the likelihood that Mr. Burton will become sick while working at CSC and have insufficient banked sick leave at 75 percent.  As a result, Mr. Burton is entitled to damages of $22,500 in respect of his lost banked sick leave.