July 30th, 2010
As I’ve previously written, ICBC and other personal injury claims can take a long time prior to settlement or trial. This is particularly true in cases involving serious injuries where the long term prognosis remains unknown for a number of years. As I explained in this video, it is difficult to value a claim until the prognosis is known and it could be risky to settle a claim before this.
Appreciating that injury claims can take a long time, how long is too long? Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this issue.
In this week’s case (Hullenaar v. Wells) the Plaintiff was allegedly injured in an assault in 1997. He claimed two cars being driven by the defendants boxed him in and then one of the defendants “struck him in the face with a stick causing damage” which led to a serious eye injury.
The Plaintiff sued the alleged assailants and ICBC within the time set out in the Limitation Act. The personal injury lawsuit dragged on for years. ICBC grew tired of the matter and brought a court application to dismiss the claim for want of prosecution. Master Caldwell granted the application and dismissed the lawsuit. In doing so the Court provided the following comments:
 Once inordinate and inexcusable delay is found, a rebuttable presumption of prejudice to the defendants arises; see Tundra Helicopters. None of the evidence presented to me rebutted that presumption.
 There is some evidence that the plaintiff and the defendant Flynn were examined for discovery in 2002 and 2003 respectively; minimal if any examination of the defendant Wells has occurred. None of the transcripts of the discovery were produced.
 This is a case which will depend largely on the evidence of the parties who were present at the time of the event. The evidence at trial will be the13 – 15 year old recollection evidence of witnesses who had spent a significant part of the evening drinking alcohol at private parties and commercial bars.
 In my view the delay of 13 years, which will be almost 15 years by the time of trial, has prejudiced and will continue to prejudice the defendants in their ability to present a full and proper defence.
 This is an unfortunate case. The plaintiff appears to have suffered significant injury. It is hard to imagine why the matter was not moved forward with anything approaching reasonable speed, however the plaintiff alone is responsible for the delay. Based upon the evidence presented, the interests of justice do not mitigate in favour of allowing the plaintiff to continue his action, rather they favour the dismissal sought by the defendant/third party.
 The action is dismissed for want of prosecution. The applicant ICBC is entitled to its costs of this application as sought; no other party sought or is entitled to its costs.
While patience is important in the settlement of personal injury claims this case demonstrates that even with very serious injuries there is such as thing as “too long”.