ICBC Law

One of the recognized objections to the introduction of expert opinion evidence in a personal injury trial relates to the opinion relying on novel or untested scientific theory.  Reasons for judgement were released last week by the BC Court of Appeal addressing this objection and taking a practical view of the benefits of experts providing opinions based on their years of experience in a clinical setting.

In last week’s case (Cassells v. Ladolcetta) the Plaintiff was injured in a 2005 collision.  He suffered from a pre-existing condition, namely psoriatic arthritis.  The Plaintiff presented evidence that this condition was aggravated due to the trauma of the collision.  This evidence was accepted at trial and damages were assessed accordingly.

The Defendant appealed arguing the medical opinion was based on novel science.  The BC Court of Appeal disagreed finding the foundation for an expert opinion can be laid based on clinical experience.  In dismissing the Appeal the Court provide the following reasons:

[13] The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now.  Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid.  They say that at most the theory is an unproven hypothesis.  They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong, 2007 BCSC 231, [2007] 7 W.W.R. 50.

[14] The judge said the criteria pertain to the admissibility of expert evidence.  Admissibility requires the weighing of threshold reliability.  No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community.  Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.

[15] Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis.  What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held.  It was an opinion based on thirty years of her experience.

[16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider.  Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident.  I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.

As readers of this blog know I hate insurance fraud.  Sometimes fraudulent claims are weeded out through investigation efforts, other times fraudulent claimants unwittingly spy on themselves.

Today, ICBC reports another example of an individual ratting themselves out unwittingly through social media, in this case Facebook.  ICBC reports the following tale of insurance fraud undone through social media:

(the Claimant’s) troubles began when he rolled his vehicle on a rural road near Springhouse, a small community west of Williams Lake.

At the time, he was prohibited from driving so in order to collect insurance on the vehicle, which was a total loss, he convinced a friend to tell ICBC that she was the driver. At the time of the crash, three other people were in the vehicle and fortunately, no one suffered serious injuries.

The story came apart after ICBC’s special investigation unit (SIU) became aware that Joseph was bragging on his Facebook page that he had rolled his truck after drinking at a New Year’s Eve party and subsequently got a big payout from ICBC.

ICBC reports that the individual was ultimately criminally charged and penalized with a fine, a restitution order and a conditional sentence.

With more victims of historic childhood sexual abuse prepared to come forward and have their claims heard we have the benefit of more decisions being published by the BC Courts addressing the circumstances when an institution will be held vicariously liable for sexual abuse by their employees.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this area of law.

In last week’s case (R.G. v. Vancouver Police Board) the Plaintiff alleged to be the victim of historic sexual abuse at the hands of the Defendant police officer.  (its worth noting the Court made no findings about whether the abuse actually took place).

In his childhood the Plaintiff “alternated between living with his parents….and living with Mr. Hughes“.  They formed what was described as a father-son relationship.  The Plaintiff alleged he was abused in the course of this relationship.  The Defendant was a member of the Vancouver Police Department at the time.

The Plaintiff sued the personal defendant and also the City of Vancouver arguing they were vicariously liable for the abuse.  Mr. Justice Burnyeat disagreed and dismissed this portion of the Plaintiff’s claim.  In finding no employer vicarious liability should arise in these circumstances the Court provided the following reasons:

[27] The Plaintiff submits that society teaches children from an early age to trust police officers and that makes children and young people particularly vulnerable to the abuse of power by police officers.  In the circumstances, the Plaintiff submits that the City “has sufficient control, either directly or indirectly through its constant presence on the Board, to be vicariously liable for Hughes’ wrongdoing”, and that the City “had sufficient power over him through his extracurricular activities – pistol shooting competitions and fishing derbies, during which his abuse of … [the plaintiff] continued that it should be held vicariously liable”.

[28] If I could conclude that Mr. Hughes was an employee of the City, I could not conclude that his wrongful acts were sufficiently related to conduct authorized by the City.  I can find no “significant connection”.  I can only find that there were incidental connections between the abuse that occurred and the location of the abuse.  Many of the alleged abuses took place in VPD vehicles.  However, the power that was exerted by Mr. Hughes was the power flowing from the “father-son” relationship which had grown and not any relationship between the Plaintiff and Mr. Hughes as a police officer.  As well, the fact that Mr. Hughes was granted access to a VPD police vehicle did not afford any particular ability for Mr. Hughes to abuse his power.

[29] In rejecting the submission made on behalf of the Plaintiff, I cannot conclude that the wrongful acts of Mr. Hughes are sufficiently related to conduct authorized by the City to justify the imposition of vicarious liability.  There is not a significant connection between any promotion by the City and by society in general to promulgate the message that children should be taught from an early age to trust police officials and the significant wrongs that are alleged to have occurred.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, discussing the propriety of lawyers lending money to clients in the context of a personal injury lawsuit.

In last week’s case (March v. Stanley T. Cope, Personal Law Corporation) the Client was injured in a 2007 motor vehicle collision.  She retained a lawyer to represent her.  In the course of the lawsuit, in addition to funding disbursements, the lawyer provided the client “two $5,000 advances” and charged interest on these loans at 18%.

The Client eventually discharged the lawyer and hired new counsel.  The case then settled.  A dispute arose as to how much the former lawyer was entitled to.  The client argued the 18% rate of interest “should be reduced from the contractual rate to a much lower figure of 4 percent“.   District Registrar Cameron ultimately allowed the rate of interest as charged but provided the following words of caution addressing lawyer/client loans:

[36] I do wish to make some observations respecting the two $5,000 advances. While I have accepted that Ms. March agreed to pay interest on these sums and was reminded of her agreement in the periodic billing she received from Mr. Cope, I am not persuaded that the contingency fee agreement contemplates such advances.

[37] It behooves a solicitor to clearly and carefully document any financial matters between himself and his or her client. If a client is to obtain an advance from a lawyer, he or she should receive a letter from the lawyer setting out the agreement, documenting all of the relevant terms and setting out the reasons for the advance. The client should also be given the opportunity and urged to obtain legal advice before concluding the agreement to borrow money from her lawyer.

[38] This should all be done to guard against the lawyer taking what would be an inappropriate personal interest in the litigation thereby putting at risk his or her obligation to provide the client with objective advice and undivided loyalty.

[39] In this case, I am satisfied that Ms. March did not suffer any detriment from the absence of clear documentation for these two loans but that may not always be the case. Accordingly, I will allow Mr. Cope the interest claimed on the two advances in keeping with his oral agreement with Ms. March.

One of the notable changes under the new BC Supreme Court Civil Rules was an increase in Tariff Costs.  If a trial occurred under the former Rules of Court but the reasons for judgement are not delivered until after the new BC Supreme Court Civil Rules came into effect which Rules govern the costs award?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this question.

In this week’s case (X v. Y) the Plaintiff was injured in a 2005 motorcycle collision.  He worked as an undercover RCMP officer and as a result was given permission to have himself and witnesses referred to via initials in the reasons for judgement.  His injuries included a burst fracture in his mid-spine.  His claim for damages was successful at trial which took place under the former Rules of Court.   The reasons for judgement, however, were not released until after the new Rules came into force.

The Defendant agreed the Plaintiff was entitled to costs but argued the lesser costs under the former Rules should apply.  Madam Justice Dardi rejected this argument and awarded costs under the current Rules.  In doing so the Court provided the following reasons:

[10] Under the New Rules a transitional proceeding means a proceeding that was started before July 1, 2010.

[11] Supreme Court Civil Rule 24-1(2) states as follows:

A transitional proceeding is deemed to be a proceeding started under these Supreme Court Civil Rules.

[12] Supreme Court Civil Rule 24-1(14) states that:

If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.

[13] Section 10 of Appendix B to the New Rules provides:

Without limiting section 9, Appendix B of the Supreme Court Rules, B.C. Reg. 221/90, as it read on June 30, 2010, applies to

(a) orders for costs made after December 31, 2006 and before July 1, 2010,

(b) settlements reached after December 31, 2006 and before July 1, 2010 under which payment of assessed costs is agreed to,

(c) costs payable on acceptance of an offer to settle made under Rule 37 or 37B, if that offer to settle was made after December 31, 2006 and before July 1, 2010, and

(d) all assessments related to those orders, settlements and costs.

[14] This proceeding is a transitional proceeding pursuant to Rule 24-1(2) and as such, the determination of costs is governed by Rule 14-1. Although the trial was commenced under the former Rules, the judgment in this matter was rendered on July 18, 2011. The defendants’ obligation to pay damages arose on that date. As there were no rights or obligations arising out of or relating to the trial that were to have effect before September 1, 2010, I cannot conclude that Rule 24-1(14) has any application to the determination of costs in this case.

[15] Furthermore, on a plain reading of Section 10 of Appendix B, Appendix B of the former Rules has no application to this case as there were no relevant offers or orders made prior to July 1, 2010.

[16] In the result I conclude that the New Rules govern the determination of costs in this proceeding.

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing fault and damages as a result of a 2008 motor vehicle collision.

In this week’s case (Jarmson v. Jacobsen) the Plaintiff was riding a motorcycle with his daughter when a vehicle operated by the Defendant turned into his path of travel.  Although the Defendant denied fault the Court found his evidence “wholly unreliable” and found him fully responsible for the crash.  The collision resulted in multiple injuries to the Plaintiff including a shoulder injury, a knee injury and a severe traumatic brain injury.

Global damages of over $1 million were assessed including non-pecuniary damages of $230,000.  The consequences of the head trauma were expected to have significant effects on the Plaintiff’s long term functioning both vocationally and domestically.  The full discussion surrounding this assessment is too lengthy to reproduce here but the following key findings were made with respect to the severity of injury were made by Mr. Justice Meiklem:

[54] Dr. Miller’s DSM IV diagnostic formulation included personality disorder due to traumatic brain injury and an adjustment disorder with mixed features of anxiety and depressed mood. Based on neurological indices of severity, Mr. Jarmson suffered a severe traumatic brain injury.

[55] A further indication of the severity of the injury to Mr. Jarmson’s brain is gleaned from the evidence of Dr. Gary Stimac, a diagnostic neuroradiologist, who testified and reviewed with the court many of the scanned CT and MRI images of Mr. Jarmson’s brain. These consisted of CT images taken at Kelowna General Hospital at intervals of about 9 hours, 40 hours, and 5½ days after the collision, and a complex set of MRI images obtained April 5, 2011. Dr. Stimac’s written report of August 15, 2011(p. 5-6) notes that:

The radiology examinations, in conjunction with emergency evaluations, establish that Mr. Jarmson sustained severe injury to the head. The immediate and subsequent CT scans show the left frontal impact and the coup-contrecoup contusions. The later MRI shows diffuse brain atrophy, evidence of white matter scarring, encephalomalacia, and hemosiderin deposits from the hemorrhagic contusions.

[56] Dr. Stimac explained that the atrophy he referred to is due to the absorption/removal of necrotic tissue…

[88] I find that the fair, reasonable, and appropriate award to compensate Mr. Jarmson for his non-pecuniary losses is $230,000.

A reality at busy intersections is that drivers, after committing to an intersection on a green light, sometimes need to wait until the light turns red to complete their turn.  If a crash occurs in these circumstances a driver can (depending on the specific facts of course) be found faultess for the collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.

In this week’s case (Yanakami v. Whittey) the Plaintiff was attempting a left hand turn.  She committed to the intersection.  After her light turned red vehicles in two of the three oncoming lanes came to a stop.  At this time she proceeded to complete her turn.  The Defendant, who was travelling in the third oncoming lane, ran the red light and a collision occurred.

Mr. Justice Fitch found the Defendant fully at fault for the crash.  In doing so the Court provided the following reasons:

[62] Against the background of this discussion, I make the following factual findings:

1. the plaintiff began her left turn immediately after the light for east and westbound traffic changed to red;

2. two other vehicles traveling east had come to a stop at the intersection in the curb and centre-line lanes;

3. the plaintiff was cognizant of, and attentive to, the considerations one would expect to be in the mind of a reasonably prudent driver including the colour of the traffic light, the location and speed of oncoming traffic, the location of Mr. Whittey’s vehicle at various points in time, including when the light turned red, and the potential for there to be pedestrians walking to the south in her intended path of travel;

4. Mr. Whittey had ample time to stop before the intersection and do so in safety, just as two other eastbound vehicles had done, when the light changed to yellow;

5. the plaintiff concluded, and was entitled in fact and in law to conclude, that the defendant’s vehicle did not present a hazard, that he had plenty of time stop (as other vehicles had done) and that it was safe for her to proceed with her left turn;

6. the defendant was not being attentive to the factors a reasonably prudent driver would have been attentive to before the collision, including the presence of the plaintiff’s vehicle in the westbound left turn lane immediately in front of him or the fact  that a car had already come to a stop ahead of him in the eastbound centre-line lane. This conclusion is supported by the defendant’s own admission that he was not looking at the left turn lane for westbound traffic as he approached the intersection because it was not important for him to do so;

7. Mr. Whittey entered the intersection after the light turned red;

8. the plaintiff could not possibly have taken evasive action at that point to avoid the collision.

[63] Applying these facts to the applicable law, I am satisfied that this accident was caused solely by the negligent driving of the defendant, Mr. Whittey.

Last year the BC Supreme Court refused to certify a class action for victims of sexual abuse at the hands of a corrections guard employed by the Province of BC.  While the Plaintiff and the Province of BC wished to have the matter certified Mr. Justice Grauer was concerned that inadequate notice provisions and a short opt-out provision would result in some victims losing their right to sue.

The parties attempted to address these concerns by creating more meaningful notice provisions and a more generous period for plaintiffs to advance their claims.  They re-applied for certification.  In reasons for judgement released this week (Lakes v. MacDougall) Mr. Justice Grauer once again rejected the proposed class action finding the limitation period created by certification would be too prejudicial for victims of historic sexual abuse.  In dismissing the application Mr. Justice Grauer provided the following reasons:

[13] Here is the situation.  For those of MacDougall’s victims who have already come forward and consulted counsel, there is no problem.  If they have already commenced litigation, they are deemed to have opted out, and otherwise may do so if they wish within the 90-day period provided.  They already have the advantage of access to legal counsel and will have no difficulty in exercising their options.  Consequently, it does not surprise me that the clients of Mr. Poyner and those of Mr. Simcoe support the proposed settlement.

[14] But what of the rest of the proposed class, who remain unidentified?  The evidence before me clearly establishes the roadblocks that inhibit these victims from breaking silence and coming forward to disclose the abuse they suffered.  They are accordingly particularly vulnerable to losing their claims through the effluxion of time.  This is exacerbated by notice provisions that, while likely to ensure maximum dissemination to those still in the prison population, offer little hope of reaching those in more isolated circumstances.

[15] It is no answer, in my view, to say that these victims may avoid the risk of losing their rights by simply filing a single piece of paper to opt out within the 90-day period mandated for doing so.  That is a very short time in the context we are discussing.  Once it has passed, they may no longer opt out; they are left with 21 months within which to file a claim, failing which they are forever barred.

[16] It is my respectful opinion that this additional time remains insufficient to counterbalance the prejudice to this particular group arising from the imposition of a limitation period where none previously existed.  Those members of the class who remain unidentified still face the prospect of losing more than they and the rest stand to gain should the settlement be approved and the action certified.  The amended terms represent an improvement, but not enough.  It is not open to me to craft acceptable settlement terms, or to impose them.

[17] In the circumstances, I conclude that the parties have failed to establish that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issue raised in this matter.  The proposed procedure does, in my view, offer certain procedural advantages to the proposed class, as discussed above.  These are not, however, sufficient to offset the continuing risk of severe prejudice to this vulnerable population to which the terms of the settlement agreement give rise.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a common type of intersection crash; one involving a left-hand turning vehicle and a through driver.

In this week’s case (McPherson v. Lange) the Defendant was travelling Northbound on Canada Way in Burnaby, BC.  The Defendant was intending to make a left hand turn.  (Defendant’s view depicted in below photo)

At the same time the Plaintiff was travelling in the on-coming southbound lane.  The Defendant committed to the intersection and waited to turn.  After the light turned amber she began her turn.  The Plaintiff drove through on a late amber light and the collision occurred.  In finding both parties equally to blame Mr. Justice Armstrong provided the following reasons:

[40] Based on Ms. Lange’s and Mr. Enns’ description of the events leading up to the accident, I have concluded that she stopped before entering the intersection, entered the intersection and stopped again. She proceeded on the amber light, and erroneoulsy believed that she had sufficient time to complete her turn without contributing to a risk of collision with the oncoming McPherson vehicle. She did not see the McPherson van before making her decision to proceed with her left turn and did not look again or see him as she started to travel through the balance of the intersection.

[41] It also appears to me that when she first saw the McPherson van some distance from the intersection, she misjudged the speed and/or distance of the vehicle. She did not express any expectation that Mr. McPherson would be able to stop or would stop before colliding with her…

[45] Section 128 of the MVA required Mr. McPherson to stop his vehicle unless the stop could not be made safely. He could not suggest or explain why he could not have stopped his vehicle safely in the time between the appearance of the amber light and the impact. He did not say he was too close to the intersection to bring his vehicle to a stop or that there were any other circumstances that would have prevented him from stopping his van. It is clear that his light was amber for 4.5 seconds and that he entered the intersection towards the end of that 4.5 second time. I conclude the McPherson vehicle had time to stop safely without entering the intersection. This is corroborated by the testimony of Mr. Melin who was in the lane to Mr. McPherson’s right. Mr. Melin said that he had ample time to stop and was surprised that Mr. McPherson sped past him after the light turned amber. I also find on the evidence that Mr. McPherson did have enough time to stop before the light turned to red, and in choosing not to do so, he created a significant danger.

[46] In my view Mr. McPherson did not drive prudently and his failure to stop his vehicle before entering the intersection was a breach of his duty to Ms. Lange. Mr. McPherson admits that his negligence contributed to the accident but he argues that Ms. Lange is also contributorily negligent…

[49] The tension between the obligations of the left-turning driver and the through driver are difficult to resolve. It is clear from Morgan, Mitchell and Tejani that the left-turning driver has an obligation to keep a lookout for a vehicle obviously headed into the intersection in disregard for the traffic signal…

[54] I cannot measure the differing degrees of fault between both the plaintiff and defendant and accordingly, I apportion liability at 50% against Mr. McPherson and 50% against Ms. Lange.

With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions.  With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:

Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.

In anticipation of the almost certain phone calls I will receive this week I write this post.

If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances.  Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.

If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.

Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.

If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.

People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.

Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.