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 April, 2010

Why ICBC's "Low Velocity Impact Program" Is Not the Law in British Columbia

April 30th, 2010

Countless people have been injured in car crashes over the years in British Columbia and had their injury claims denied by ICBC on the basis of the Low Velocity Impact Program.

I have written many times about this program explaining that it has no legal force in BC.  Reasons for judgement were released today proving this yet again and in doing so providing one of the better explanations of why a certain threshold of vehicle damage is not necessary in order to have a successful personal injury claim in this Province.

In today’s case (Gignac v. Rozylo) the Plaintiff was involved in a 2004 collision in Victoria, BC .  At trial a ‘senior estimator‘ employed by ICBC testified that the Plaintiff’s vehicle suffered “cosmetic damage only to the rear bumper cover. ‘ and that ‘there is no bumper misalignment or sheet metal damage‘.

The Plaintiff was injured but ICBC advanced the LVI defence arguing that “given the very minor nature of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims‘.

Despite finding that the crash was ‘one of the more minimal contacts between motor vehicles in the history of the internal combustion engine‘ Mr. Justice Wilson outright rejected the LVI defence and in doing so provided the following very useful summary of the law:

[30] I am not persuaded that the third party’s argument is open to me to accept.  There are two propositions which lead me to that opinion.

[31] First, in Gordon v. Palmer , Thackray J. (as he then was) made the following observations:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  …  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slips and falls.  … The presence and extent of injuries are to be determined on the basis of evidence given in court.

[32] Second, in Price v. Kostryba,McEachern, C.J.S.C. (as he then was), said at para 4:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash.  Human experience tells us that these injuries normally resolve themselves within six months to a year or so.  Yet every physician knows some patients whose complaint continues for years, and some apparently never recover.

[33] Therefore, I conclude that Gordon is authority for the proposition that the magnitude of forces unleashed, in any given contact, is not determinative of the injuries sustained.  Accordingly, in this case, there was a “real risk” of the harm now complained of.

[34] And, Price is authority for the proposition that, objectively, some patients, of “ordinary fortitude” sustain injuries which are permanent.  In this case, I am not dealing with the particular vulnerabilities of this particular plaintiff.

[35] In result, I find the defendant liable for the plaintiff’s injuries.  That is to say, the defendant’s carelessness caused, as I will describe below, the plaintiff’s injuries, in fact and in law.


When Should I Settle My ICBC or Other British Columbia Personal Injury Claim?

April 30th, 2010

Other than “how much is my case worth?” the question probably most asked of personal injury lawyers is “when should I settle my claim?“.

The short answer is when your claim can be fairly valued and an acceptable settlement offer is made.  So when can a claim be valued?  Here is a brief video I uploaded to YouTube discussing this topic  (complete with an unexpected phone call in the middle of the video!)  I hope this information is of some assistance.


Nightclub Found 35% At Fault for Injuries to Patron Struck By Beer Bottle

April 29th, 2010

Reasons for judgement were released today discussing the duty of British Columbia nightclubs to take reasonable care in seeing that their patrons are safe.

In today’s case (Hartley v. RCM Management Ltd.) the Plaintiff was injured when he was “struck by a beer bottle in his right eye by an unidentified assailant” while at a nightclub.  The Plaintiff sued the corporate defendants that operated the Nightclub.

Before being struck by the bottle the Plaintiff had a verbal altercation with the unknown assailant which lasted 2 – 2.5 minutes.  The Plaintiff argued that the Nightclub was responsible for failing to intervene in that time and had they done so this injury would have been prevented.    Madam Justice Gerow agreed in part with the Plaintiff and found that the unknown assailant was 50% responsible, the Plaintiff was 15% responsible and the corporate Defendants 35% responsible for failing to have its security guards intervene in the altercation.  In reaching this verdict the Court provided the following reasons:

[25] It is clear from the case law that the corporate defendants were not an insurer of Mr. Hartley’s safety. However, there are circumstances in which an occupier of a nightclub or bar has been found liable to its patron for injuries caused by another patron. Whether or not an occupier of a nightclub or bar will be liable for injuries caused to a patron by another patron is very fact dependent.

[26] The issue is whether the corporate defendants took reasonable steps to protect Mr. Hartley from a danger they ought to have recognized when Mr. Lutke and the unidentified man were yelling and pushing and shoving.

[27] On the night of the incident, there were five security staff on duty. The uncontroverted evidence of Mr. Lutke and Mr. Hartley is that Mr. Lutke and an unidentified man were involved in an altercation – pushing and shoving accompanied by loud yelling – for 2 to 2½ minutes….

In my view, it is reasonably foreseeable that the type of altercation described by Mr. Lutke and Mr. Hartley could escalate, and lead to a fight in which someone could be injured by being hit by a bottle.

[31] The uncontradicted evidence of Mr. Hartley and Mr. Lutke is that the altercation went on for 2 to 2½ minutes before Mr. Lutke was hit with the bottle and Mr. Hartley stepped in to assist him. As indicated earlier, Mr. MacLeod conceded that such behaviour – yelling and shoving and pushing – would not be tolerated for that length of time in the Barfly. I am of the view there was more than adequate time for security staff to intervene before Mr. Hartley felt it necessary to go to Mr. Lutke’s aid. Their failure to do so was, in my view, a breach of their duty under s. 3 of the Occupiers’ Liability Act.


ICBC Wage Loss Benefits – Definition of "Employed Person" Discussed

April 28th, 2010

If a person insured with ICBC is disabled as a result of a motor vehicle collision they may qualify for disability benefits from ICBC under their own policy of insurance.  These are often referred to as Part 7 TTD benefits or Part 7 Wage Loss Benefits.

One necessary condition for these benefits is that the injured person needs to be an “employed person“.  If a person is not employed at the time of the accident they may still qualify for disability benefits from ICBC if they were  ‘employed or actively engaged in an occupation for wages or profit for any 6 months during the period of 12 months immediately preceding the date of the accident.’  Reasons for judgement were released today discussing this definition of ‘employed person‘.

In today’s case (Pavlovich v. ICBC) the Plaintiff was injured in a rollover accident.  The medical evidence was uncontradicted that his accident related injuries “temporarily totally disabled him from his regular employment as a journeyman carpenter (for about 6 months) from the date of the accident“.

The Plaintiff was not actively working at the time of the crash but had worked about 1,100 hours in the year before the accident.  He argued that in these circumstances he is an ‘employed person’ entitled to disability benefits from ICBC.  ICBC refused to pay the wage loss benefit arguing the Plaintiff did not meet the definition of employed person under Part 7 of the Insurance (Vehicle) Regulation.

Mr. Justice Rogers was asked to resolve this dispute.  The Court agreed with ICBC and in doing so made the following useful comments about the definition of ‘employed person‘ for the purpose of receiving ICBC Part 7 disability benefits:

[8] For the purpose of entitlement to temporary total disability benefits under Part 7 of the Insurance (Vehicle) Regulation of the Insurance (Vehicle) Act, the claimant must be an “employed person”. An “employed person” is defined by s. 78 of the Regulation and means a person:

(a) who, on the date of an accident for which a claim is made, is employed or actively engaged in an occupation for wages or profit, or

(b) who…

(ii)        for any 6 months during the period of 12 months immediately preceding the date of an accident for which a claim is made is employed or actively engaged in an occupation for wages or profit.

[9] As noted, the parties agreed that the plaintiff was not employed on the date of the accident. Accordingly, if the plaintiff is to qualify for temporary total disability benefits, it must be on the basis of his being an “employed person” within the meaning of subsection (b) of the definition….

[17] The plaintiff’s interpretation of the Regulation suffers several flaws. One such is the fact that in practice it would result in absurdities of its own. For example, if the plaintiff has it right that under subsection (b) “employed person” status may be achieved by working more than 1,000 hours in the 12 months preceding an injury, one person might accumulate all the necessary hours by working intensely for only 2 or 3 months, while another person might never qualify because of his part?time employment and work for only a few hours every week. The part?timer might work for, say, 11.9 months immediately before his injury and be laid off the day before his accident; yet, because of his part?time status, he may not have accumulated the 1,000 hours the plaintiff’s interpretation would require of him before he could be an “employed person” under subsection (b). This would lead to the absurd result of a part?time person working up to the day before an accident not being employed for the purposes of the Regulation, while a person who worked like the devil over only 2 months would qualify for benefits. This result would be directly contrary to the plain meaning of the words of the Regulation.

[18] Another flaw in the plaintiff’s interpretation is its reliance on counting hours to qualify as an employed person. This might theoretically work if everyone toiled, as the plaintiff did, for an hourly wage. That is not, however, the way things are. Some people are paid by the task, as in a seamstress’s piece?work, some are paid a salary and no account is kept of the hours they work, some are paid on pure commission and the hours they work may bear no relation at all to their income and so the number of hours they work are irrelevant. Counting hours of work is simply not a practical way to fashion the broad?based and universal test for qualification for disability benefits under the Regulation.

[19] A much more sensible and practical interpretation, and the interpretation that is consistent with the Regulation’s plain language, is the interpretation that the defendant propounds. The Regulation stipulates that to be an employed person the claimant must have been employed for 6 of the 12 months immediately preceding the injury. It is the being employed, not the amount of work done, during those 6 months that counts. Put another way, a person who works part?time for 6 months is, for the purposes of the Regulation, no less employed that the person who works 18 hours a day for the same period.

[20] I find that whether one excludes or includes the plaintiff’s house renovation work, the arithmetic of the plaintiff’s situation does not yield enough weeks of work for him to be said to have been employed for 6 of the 12 months before the accident.


Excluding Witnesses From Open Court in British Columbia

April 27th, 2010

If there are concerns that witnesses at trial will try to ‘match-up‘ their testimony it is  important to exclude them from Court before they testify.   In British Columbia the Supreme Court Rules don’t have any provision addressing the exclusion of witnesses during trial, however the Court retains a discretion to make such an order pursuant to it’s ‘inherent jurisdiction‘.  Reasons for judgement were released today providing a summary of this area of law.

In today’s case (He v. Yeung) the parties had a dispute about a commercial relationship.  The key witnesses to the negotiations were expected to testify and the Court was asked to decide whether an order should be made excluding these witnesses before they took the stand.  Mr. justice Burnyeat refused to make such an order and in doing so provided the following useful summary of this area of BC Civil Procedure:

[3] McLachlin and Taylor, British Columbia Practice (3rd ed.), Looseleaf (Markham, Ont.:  LexisNexis Butterworths, 2006), sets out this statement regarding the practice in British Columbia:

One limitation on the principle of an open court is the practice as to exclusion of witnesses.  The court, upon application of any party, may order that witnesses be excluded in the interest of securing the best possible evidence.  While the British Columbia Rules, unlike those of certain other jurisdictions, do not expressly confer a power to exclude witnesses on the court, it appears that the court has an inherent power to make such an order: see Moore v. Lambeth County Court Registrar, [1969] 1 All E.R. 782 (C.A.).  The practice is for counsel to ask for an order excluding witnesses.  …. If a witness defies an order of exclusion or circumvents it by discussing the proceedings with those who were present in the courtroom, his evidence cannot be excluded for this reason, although the weight given it may be reduced: Crawford et at. v. Ferris, [1953] O.W.N. 713 (H.C.); R. v. Dobberthien, [1973] 6 W.W.R. 539 (Alta. C.A.), affd (sub nom. Dobberthien v. The Queen) (1974), 50 D.L.R. (3d) 305 (S.C.C.).  Moreover, the witness may be cited for contempt:R. v. Carefoot, [1948] 2 D.L.R. 22 (Ont. H.C.).

(at p. 40?2)

[4] The Learned Author of The Law of Evidence, 10th ed. (London: Sweet & Maxwell, 1906) states:

If the judge deems it essential to discovering the truth that the witnesses should be examined out of the hearing of each other, he will order them all on both sides to withdraw, excepting the one under examination.  Such an order is, upon the application of either party at any period of the trial, rarely withheld, but it cannot be demanded of strict right.

(footnotes omitted) (at pp. 1007-1008)

[5] A more extensive history tracing the practice as far back as the story of Susannah from the Book of Daniel is set out in Wigmore, A Treatise in the Anglo-American System of Evidence in Trial at Common Law, Vol. 6 (Boston: Little Brown, 1940).  Wigmore states that the practice came from Germanic common law which the English law inherited.

[6] While the Rules of Court in Alberta (since 1923), in Manitoba (since 1913), in Ontario (since 1913), and in Saskatchewan (since 1921) provide that a judge may order a witness to be excluded at the request of either party, no such provision is specified in the British Columbia Rules or in a British Columbia statute.  Accordingly, it is the inherent jurisdiction of the Court which confers the power to exclude witnesses in civil trials.

[7] The traditional reasons for excluding witnesses include:  (a) if the hearing of opposing witnesses were permitted, the listening witnesses could ascertain the points of difference between their testimonies and could shape their own testimony to better advantage; and (b) regarding witnesses on the same side of the litigation, it deprives the later witness of the opportunity of shaping his or her testimony to correspond with the testimony of the earlier witness.

[8] In Bird et al. v. Vieth et al. (1899), 7 B.C.R. 31 (S.C.–F.C.), McColl C.J. on behalf of the Court stated that the ruling of a trial judge to exclude defendants as if they were witnesses was in error, and that a new trial should be allowed.  In the context of that appeal, the following statement was made:

We are of opinion that the learned trial Judge erred in dealing with the question of the defendants’ exclusion from the Courtroom as if they were in the same position as a witness, not a party to the action, whose exclusion, if requested, is commonly ordered as of course.  (at pp. 31?32)

[9] In McIntyre et al. v. McIntyre, [1925] 2 W.W.R. 581 (B.C.S.C.), Macdonald J. ruled that both plaintiffs who would be witnesses were entitled to remain in the Court but that, with the concurrence of their counsel, the one plaintiff would be excluded while the other plaintiff was giving evidence.  The rationale for why it was necessary for the plaintiffs to be available was described as follows:

If that were granted and the plaintiff excluded, something might arise and counsel would not be aware of what his client’s views were on the matter, and he would have to run out of Court. … The party instructing counsel would not be in a position to conduct his case if he were excluded from the Court.  (at p. 582).

[10] In the context of a criminal appeal, Branca J.A. made this statement in R. v. Smuk, [1971] 4 W.W.R. 613 (B.C.C.A.):

In my practice, in our law courts, counsel have always asked for an order excluding witnesses and the order is a discretionary one.  On the civil side the litigants, of course, have an absolute right, subject to certain exceptions, to remain in court and on a criminal charge the accused has the same right.


Pain and Suffering Awards for Year Long Soft Tissue Injuries Discussed

April 27th, 2010

Reasons for judgement were released today addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for 2 plaintiffs who suffered soft tissue injuries in a 2006 BC car crash.  I summarize the Court’s key findings in my continued effort to grow this public data base of damage awards in BC injury claims

In today’s case (Morrison v. Peng) the Plaintiffs (husband and wife) were rear-ended by a vehicle driven by the Defendant.  Fault was admitted leaving the Court to value the Plaintiffs’ injury claims.  Both suffered soft tissue injuries which lasted approximately one year.  In assessing the Plaintiffs non-pecuniary damages at $9,000 and $18,000 respectively Mr. Justice Masuhara summarized the injuries as follows:

[23] Having considered the evidence, I am of the view that Mr. Morrison suffered soft tissue injuries to his neck and back which can be characterized as mild, and that his symptoms resolved within a year.  Given my assessment of Mr. Morrison and the facts, my view is that he was able to do more than what he stated…

[26] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $9,000.

________________________________________________________________________

[42] Ms. Jabs’ condition is somewhat complicated by the several conditions that she has identified in the report.  Based on the foregoing medical opinion, I find that that she suffered soft tissue injuries to her neck, upper and lower back and that the symptoms she experienced resulting from the accident had a duration somewhat beyond one year of the accident.  Her chiropractic and massage treatments end at this point for about one year.  I would characterize her injuries as mild to moderate in severity. ..

[46] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $18,000.

Feel free to visit the soft-tissue injury archives of this site to review other BC cases addressing non-pecuniary damages for soft tissue injuries.


British Columbia Injury Claims and Collisions With Animals

April 26th, 2010

When the driver of a vehicle strikes an animal in the roadway and injures their passengers they can only successfully sue for damages (a tort claim) if it can be demonstrated that the driver did something careless.  Sometimes collisions with animals are unavoidable even with the most careful driving and in these cases injury lawsuits against drivers get dismissed.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.

In today’s case (Freidooni v. Freidooni) the Plaintiff was injured when the vehicle she was occupying struck a deer.  The Plaintiff was sitting in the passenger seat.  Her husband was driving.  They were travelling in the left of two westbound lanes on a highway.  The speed limit was 110 kmph but the defendant was driving, in cruise control, at 130 kmph.   To the right of the highway was an ‘open field with no trees or shrubs that would preclude an individual from seeing animals next to the travelled protiomn of (the) Highway“,   There was vegetation to the left of the highway that “could have impeded the defendant’s view of deer in that areal“.

There were no vehicles which limited the driver’s view.  A deer entered the Defendant’s lane of travel and the collision occurred.  Neither he nor the Plaintiff saw the deer before impact.  The Defendant said he was not at fault in these circumstances arguing that “it cannot be determined with any certainty as to whether the deer entered the westbound lanes of Highway No. 16 from the open area to the north, that being the open field to the defendant’s right, or whether it emerged from the vegetation to the defendant’s left“.

Mr. Justice Shabbits disagreed with the Defendant and found him entirely at fault.  In coming to this conclusion he noted as follows:

[23] The defendant submits that it has not been shown that the deer did not emerge from cover in the median of the roadway, and that since neither the plaintiff nor the defendant saw the deer before the collision, it cannot be inferred that the defendant could have seen the deer in sufficient time to avoid the impact.

[24] The evidence, however, is unequivocal in that the deer approached the defendant’s vehicle from its right.  Even if it had initially emerged from the median of the roadway, it must have crossed entirely over the lane in which the defendant was driving before turning and re-entering the defendant’s lane of travel.  Alternatively, the deer emerged from the open field to the right of the highway.  I am of the opinion that in either case, the defendant’s failure to see the deer was negligent.  The only explanation as to why he did not see the deer is that he was not paying attention to the roadway.  The defendant was on cruise control on a wide roadway in perfect conditions with no other traffic about.  By his own account, he was drinking coffee and listening to music.  In my opinion, the reason why he did not see the deer on the roadway was that he was not paying attention.  He was not paying attention because he did not expect anything to be there.

[25] The accident occurred in an area where there is wildlife.  The defendant knew that.

[26] In White v. Webster, Esson J.A. says that the question comes down to this.  He says it was a virtually unavoidable inference that there was some absence of look out on the part of the driver.  I am of the same opinion in this case.  The defendant was not paying attention.  He did not see the deer when he should have seen it.  He took no evasive action to avoid the impact when he should have been able to do that.

[27] I find that the defendant was negligent.  He is liable for the accident.

When the driver of a vehicle injures passengers by colliding with an animal in British Columbia the passengers should be cautious before giving a statement to the driver’s insurance company addressing the issue of fault.   As I’ve previously written, if any issues of carelessness are glossed over in the statement it will certainly be used against you if you later seek to advance a tort claim for compensation for your injuries.


BC Court of Appeal Finds Cyclist 50% at Fault for "Cycling Between Lanes"

April 26th, 2010

Reasons for judgement were released today by the BC Court of Appeal addressing the issue of fault for a cyclist involved in an intersection crash.

In today’s case (MacLaren v. Kucharek) the Plaintiff cyclist was injured when he was travelling through an intersection in Surrey BC when he was struck by a left hand turning vehicle approaching from the opposite direction.  At  trial the driver of the vehicle was found 100% at fault.  The vehicle operator appealed and the BC High Court overturned the trial judgement and found the cyclist 50% at fault.

The roadway the cyclist was travelling on had one marked lane but as it approached the intersection it “widens…(and) although unmarked as two lanes, there is sufficient room for two vehicles to travel abreast within the one marked lane.”  Critical to the Court’s judgement was a finding that although unmarked, the roadway had “two de facto lanes” just prior to the intersection.

It was accepted that vehicles that drove in the right of these two defacto lanes were right turning vehicles. Vehicles that intended to drive straight through the intersection stayed in the left hand portion of the wide lane.  As the cyclist approached the intersection a vehicle in front of him in his direction fo travel stopped and left a “gap in the traffic lined up behind the intersection“.  The Plaintiff passed this traffic on the right and entered the intersection (basically travelling down the centre of these two defacto lanes).  At the same time the Defendant made a left hand turn into the intersection resulting in collision.  The Defendant testified that he never saw the cyclist prior to the crash.

The driver was found at fault for failing to see the cyclist.  In finding the cyclist 50% at fault the BC Court of Appeal provide the following reasons:

The question that arises, however, is whether Mr. MacLaren should have “taken the lane”; that is, ridden behind the other traffic in the lane, rather than do what he did which was to put himself beside vehicles in that lane and to pass them on the right…

…In my view it is not so much that Mr. MacLaren was passing on the right when he was struck by the appellant, but that he was riding between what were effectively two lanes of travel before entering the Laurel Drive intersection.  In my view, s. 183(2)(c) (which required him to ride as near as practicable to the right side of the highway), did not authorize him to ride between two lanes of travel.  For Mr. MacLaren to ride between two unmarked but commonly travelled lanes immediately prior to reaching the Laurel Drive intersection was dangerous because a northbound left-turning driver would have little opportunity to see him as he cycled alongside vehicles to his left.  In my view, given the configuration of the roadway and the pattern of traffic in this case, for Mr. MacLaren to cycle alongside vehicles to his left created a danger both to himself and to the appellant.

[29] While Mr. MacLaren did the right thing by moving out of the curb lane, he should have moved in behind the vehicles travelling toward the “through” lane, not beside them.  By cycling between lanes Mr. MacLaren did not show sufficient care for his own person to avoid a finding of contributory negligence.  Taking a lane was the only way, in my view, that a bicyclist could have satisfied the mandate of s. 183(2)(c) to safely travel as near as practicable to the right of the highway…

I am of the view that the trial judge erred in failing to conclude that Mr. MacLaren, in choosing to ride in between the two travel lanes and beside the stopped pick-up rather than in the lane of travel behind it, did not take reasonable care for his own safety.  His failure to take reasonable care for his own safety was one of the causes of the accident.  Mr. MacLaren was therefore contributorily negligent.


Hearsay Evidence: BC Injury Trials and Missing/Deceased Witnesses

April 24th, 2010

Hearsay evidence is an out of Court statement introduced at trial for the truth of its contents.  In British Columbia hearsay evidence is admissible in certain circumstances.  BC Courts apply a ‘principled exception‘ to the general rule against hearsay evidence in circumstances where there is sufficient ‘necessity and reliability‘.

What happens if a key witness dies before a personal injury claim in BC heads to trial?  Can previously recorded evidence from that witness be introduced under this ‘principled exception‘?  Reasons for judgement were published this week on the BC Supreme Court website dealing with this issue.

In this week’s case (Simon v. Portsmith) the Plaintiff suffered very serious injuries when he was struck by a vehicle as he was walking along a highway in Salmon Arm, British Columbia.

A key question at trial was weather the owner of the vehicle consented to the driver operating the car.  Another important issue was where the Defendant driver lived at the time of the accident.  The owner of the vehicle could have been ‘vicariously liable‘ for the driver’s actions depending on the answers to these questions.

A witness by the name of Mr. Stushnov was expected to give evidence on where the alleged driver was living at the time of the crash.  Prior to trial Mr. Stushnov swore an affidavit setting out his evidence on this point.  The witness died unexpectedly prior to trial.  The Defendant tried to introduce the affidavit as evidence.  The Plaintiff objected.  Mr. Justice Boyce let the evidence in providing the following useful analysis:

[13] In the case at bar, the plaintiff concedes that the evidence is necessary. Mr. Stushnov is no longer available to testify. The issue is whether the evidence meets the threshold reliability test.

[14] The evidence was taken under oath before a lawyer. Mr. Stushnov was not involved with the events giving rise to this claim in any way. There is no suggestion that he had any personal relationship with Mr. Portsmith other than by providing him a place to live for a period of time. There is no suggestion of any reason that he might have to not tell the truth. He had no interest in the outcome of this proceeding. He was an independent witness.

[15] It is of course true that the plaintiff would now have no way to test Mr. Stushnov’s credibility through cross-examination. However, as counsel for the plaintiff on this motion frankly stated, when the matter was before the court on the Rule 18A application, the credibility of Mr. Stushnov was not in issue and was not raised. What was in issue was the credibility of Mrs. Bostock.

[16] Further, as noted by counsel for the defendant, plaintiff’s counsel has known since 2005 what evidence Mr. Stushnov was expected to give. They chose not to interview the witness to test his credibility.

[17] This evidence is clearly important to the defence. In my view, despite the fact that the plaintiff does not have the ability to cross-examine the deponent, which is something that is often the case when resort has to be made to hearsay evidence, the circumstances surrounding the making of the statement provide sufficient safeguards of reliability to justify its admissibility. The affidavit will therefore be received in evidence.


More on ICBC Claims and the Timing of Formal Settlement Offers

April 23rd, 2010

One principle that is becoming well defined with respect to Rule 37B is that settlement offers made on the eve of trial may not trigger any costs consequences.  Reasons for judgement were released today demonstrating this.

In today’s case (Parwani v. Sekhon) the Plaintiff was injured in a 2004 BC car crash.  The Plaintiff sued for damages.  As trial approached the Plaintiff offered to settle his case for $37,000 plus costs and disbursements.  On the last business day before trial the Defendants responded with a formal settlement offer under Rule 37B for $10,000 plus 50% of disbursements.

The claim went to trial and the Plaintiff claimed damages of $270,000.  The claim was largely unsuccessful with the Plaintiff being found 75% at fault.  Damages were assessed at $25,000 leaving an award of $6,250 for the Plaintiff (25% of $25,000).

The Parties could not agree on costs consequences.  The Defendants argued that since they beat their formal offer they should be awarded the costs of trial.  Madam Justice Ross disagreed with this submission finding that while the Defendants offer should have been accepted it was simply made too late.  In declining to award the Defendants any costs the Court reasoned as follows:

[18] The defendants submit that the offer to settle was one that ought reasonably to have been accepted given the evidence with respect to the liability issue. In addition, the position taken by the plaintiff at trial with respect to his losses was unreasonable given the medical evidence and the paucity of evidence to support the claims. The offer exceeded the plaintiff’s recovery at trial. The position of the plaintiff was that he did not have adequate time to consider the offer, coming as it did on the eve of trial. Moreover, had the plaintiff accepted the offer, considering the disbursements already incurred, the plaintiff would have recovered only $765.34. Accordingly, it was not reasonable to accept the offer. The plaintiff had made an early offer to settle that reflected a considerable discount to reflect the uncertainties in the case.

[19] In my view, while the defendants’ offer was reasonable, it was not early. It came on the eve of trial, after substantial costs and disbursements had been incurred. Such an offer is not the embodiment of the conduct the rule intends to promote. In the circumstances, and considering the factors identified in the rule, I am not prepared to consider the offer in relation to the award of costs.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

You can click here to read access my archived posts discussing Rule 37B in injury lawsuits.