BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for November, 2012

$100,000 Non-Pecuniary Assessment For Disc Injury Requiring Discectomy

November 30th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury caused as a result of a motor vehicle collision.

In the recent case (Peso v. Holloway) the 26 year old Plaintiff was involved in a 2007 collision where the Defendant backed into his vehicle.  The Plaintiff suffered from pre-existing “mild, non-disabling” low back pain.  Following the collision the plaintiff experienced significant low back pain ultimately requiring surgical intervention by way of a discectomy.  The Plaintiff remained symptomatic and the Plaintiff faced ‘significant risk of additional surgery‘.  The Court found the aggravation of the pre-existing condition was caused by the collision.  In assessing non-pecuniary damages at $100,000 Mr. Justice Wong provided the following reasons:

[70]         Regardless of Mr. Peso’s pre-existing condition, he was able to enjoy his life before the collision. He was able to perform ordinary household tasks, cook, and socialize with his friends and family. He had a long history of competing in competitive and recreational sports and was very active on the weekend trip to Osoyoos immediately before the collision. In addition to working at a physical job, he participated in renovation and building projects for his brother, putting in an estimated average of 12 hours a week.

[71]         According to Dr. Street, in the absence of the collision Mr. Peso would have likely continued to experience mild, non-disabling symptoms in his low back. As a result of the collision, Mr. Peso required surgery and faces a significant risk of additional surgery at some point in the future. He is limited in his capacity to perform some aspects of his work. His left leg is weaker than the right and his capacity to lift is diminished. Mr. Peso, a gifted athlete before the collision, is unlikely to return to anything close to his pre-collision level of activity.

[72]         Non-pecuniary damages ought to be assessed in the context of a young man who has sustained a permanent, life changing injury. It was clear from Mr. Peso’s testimony that he has not let his injuries stop him. He has persevered with school and actively hid his symptoms from his employer. He has tried all of his former activities but he has only been able to tolerate some successfully. It is clear that despite Mr. Peso’s determination he has real fears about his future. He worries about recurrence of pain and he worries he will be expected to perform tasks that he cannot do.

[73]         Mr. Peso suffered chronic pain disability and loss of recreational amenities for over a year until his December 2008 surgery. His scope of future recreational enjoyment will continue to be curtailed.

[74]         I fix pain and suffering with loss of amenities, past and future, at $100,000.

$16,000 Non-Pecuniary Assessment for Year Long Soft Tissue Injury

November 29th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which occurred as a result of a so-called ‘low velocity‘ impact.

In this week’s case (Ram v. Rai) the Plaintiff was involved in a 2008 rear-end collision.  The crash resulted in little vehicle damage.  The Defendant testified that the impact involved  ‘very little force‘ although the Court rejected this finding that the Defendant’s version of events was “ internally inconsistent and generally unconvincing.“.  The court went on to find that the Plaintiff suffered a year long soft tissue injury.  In assessing non-pecuniary damages at $16,000 Mr. Justice Holmes provided the following reasons:

[47]         As I find, at the time of the accident Ms. Ram was an active and healthy young woman of 21 years of age, who was busily engaged not only in full-time post-secondary studies but also in two part-time jobs.  She had an active social life with friends that involved playing several different sports as opportunities presented.  She enjoyed gym workouts and doing workout exercise tapes at home.

[48]         As I find, the accident left Ms. Ram with throbbing pain in her back, neck, and head that became intermittent over time, with occasional numbness in her legs.  The pain in the various areas gradually resolved within a year, the back pain last of all.

[49]         The effects of the injuries caused Ms. Ram to miss work and some school during the few days or a week after the accident.  They made her withdraw from social activities over a longer term, so that she seemed to her family to be withdrawn and reclusive, no longer her bubbly self.  These effects resolved as her injuries resolved, within about a year…

[55]         On all the evidence, I conclude that the appropriate award for non-pecuniary damages in this case is $16,000. 

$60,000 Non-Pecuniary Assessment For Moderately Severe Tinnitus

November 28th, 2012

Tinnitus, a subjective perception of non-existant sound, is a consequence sometimes seen following a motor vehicle collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such a condition.

In this week’s case (Yang v. Chan) the plaintiff was struck as a pedestrian in a marked crosswalk in 2007.  Fault was admitted for the crash.  The Plaintiff sufferd various soft tissue injuries but these largely settled down in the months following the crash.  What persisted was moderately severe tinnitus, a symptom that was expected to linger indefinatley.  The Court accepted this and assessed non-pecuniary damages at $60,000.  In arriving at this assessment Madam Justice Wedge provided the following reasons:

[62]         I accept the evidence of Dr. Longridge that Mr. Yang’s tinnitus was caused by the accident. According to Dr. Longridge, given the proximity of the onset of the condition to the accident, it is most unlikely that there is any other cause. Further, the tinnitus is moderately severe which, Dr. Longridge testified, is capable of significantly diminishing one’s enjoyment of life. It is a condition Mr. Yang will likely have to live with for the rest of his life.

[63]         Taking into account the pain and disruption suffered by Mr. Yang due to his soft tissue injuries in the first six months after the accident, together with the ongoing tinnitus condition which is unlikely to resolve and will continue to interfere with his enjoyment of life, I have concluded that an appropriate award of damages for non-pecuniary loss is $60,000.

Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

November 27th, 2012

I have written numerous times about ICBC hit and run claims and a Plaintiff’s obligation to make ‘all reasonable efforts’ to identify an unknown motorist prior to being able to successfully sue ICBC for damages.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this obligation.

In this week’s case (Akbari v. ICBC) the Plaintiff was involved in a 2010 collision in which he struck a light pole.  The Plaintiff alleged an unknown motorist ran a red light forcing him to take evasive action in the agony of collision.  This motorist fled the scene.  Madam Justice Baker accepted this and found that an unidentified driver did indeed cause the collision.

ICBC argued that the Plaintiff’s claim should be dismissed because he failed to make all reasonable efforts to identify the motorist after the fact.  The steps ICBC suggested included staking out the intersection to try and see the vehicle on a subsequent occasion and interviewing residents at a nearby townhouse complex.  Madam Justice Baker found these suggestions to be nothing more than a ‘fool’s errand’ that would be fruitless.  In finding the Plaintiff’s actions reasonable the Court provided the following reasons:

[61]         I am satisfied that Mr. Akbari did make all reasonable efforts to ascertain the identity of the unknown driver in the circumstances that pertained here.  Mr. Akbari’s vehicle could not be driven and he was injured and in pain; he could hardly be expected to attempt to pursue the southbound vehicle on foot.  Mr. Akbari told the attending police officer ? Constable Da Silva ? that another vehicle had been involved and he provided a description of the vehicle as a light-colored – white or silver – small car.  Mr. Perez confirmed the involvement of the other vehicle and the description.  Constable Da Silva obviously considered there to be little or no prospect of locating the suspect vehicle even minutes after it had left the scene; he did make any effort to do so, or to alert other patrol cars to search for the vehicle.

[62]         Mr. Akbari recalls having inquired of Messrs. Shiles at the scene to find out if they had seen the vehicle that crossed his path.  The accident was reported to the defendant as a “hit and run” within two hours after the collision happened.  Both Mr. Akbari and his father provided statements to ICBC.  Upon learning from his counsel of his obligation to attempt to ascertain the identity of the driver who left the scene, Mr. Akbari posted a sign at the intersection asking any witnesses to come forward.  If any part of Mr. Chinchilla’s testimony is to be believed, it is that he saw the sign on the past at the intersection, and it was that sign that prompted him to contact ICBC and, eventually, Mr. Akbari’s counsel.

[63]         Mr. Akbari also contacted Constable Da Silva a few days after the accident and asked whether there was a traffic camera at the intersection where the accident happened.  Constable Da Silva said if there was a camera, it likely took only one photo ? when the light turned green ? but he said he would check and get back to Mr. Akbari.  It was reasonable for Mr. Akbari to assume that there was no camera ? or no useful footage ? when he heard nothing further from Constable Da Silva.

[64]         When Mr. Akbari realized that Ms. Berry did not know about Mr. Chinchilla and his claim to have witnessed the collision, he made sure that Ms. Berry was provided with the phone number he had for Mr. Chinchilla.

[65]         Counsel for the defendant suggested to Mr. Akbari that he should have canvassed the residents of the townhouse complex located near the intersection to search for possible witnesses, but I consider that would have been a fool’s errand.  The photographs of the scene indicate that the townhouse complex is some distance off the roadway and that it is highly unlikely that anyone in the townhouse complex would have been able to see anything happening in the intersection, particularly late at night, when it was dark and raining.  The resident who did call to report the collision only did so because she heard the sound of the crash.

[66]         Counsel also suggested that Mr. Akbari could have staked out the intersection to see if he could spot the vehicle that crossed his path.  Again, this would have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall anything more specific than the fact that the other vehicle was a light-colored small car.

[67]         To summarize, I am satisfied that it is more probable than not that the accident was caused by the negligent actions of an unidentified driver who entered the intersection from 84th Avenue against a red light; and drove across Nordel, cutting off Mr. Akbari’s vehicle when it was so close to the intersection as to pose an immediate hazard.  I am satisfied on the balance of probabilities that Mr. Akbari did not fail to meet the standard of care required of a reasonably prudent motorist when he swerved to avoid colliding with the vehicle crossing his path.

[68]         I am also satisfied that Mr. Akbari made all reasonable efforts to ascertain the identity of the unknown driver; and that the unknown driver’s identity is not ascertainable.

Tractor-Trailer Driver Not Negligent for Entering Left Lane To Make Wide Right Turn

November 26th, 2012

Large commercial vehicles sometimes have to make wide turns.  In some circumstances it is necessary for such motorists to move out of the curb lane before executing such a turn.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing a collision occurring during such a maneuver.

In last week’s case (Steward v. Dueck) the Plaintiff was travelling the in the ‘fast’ lane.  Ahead of her in the curb lane was “a very large commercial vehicle“.  The commercial vehicle started a right hand turn by first signalling, checking that traffic was a safe distance behind him, crossing into the fast lane and beginning his wide turn.  During this time the Plaintiff collided with the trailer unit.  The Plaintiff sued for damages but the claim was dismissed.  The Court found the commercial driver was not negligent   In dismissing the claim Madam Justice Dardi made the following findings:

[25]         Prior to initiating his turn, Mr. Dueck described that he first checked the traffic. He was satisfied that he could safely initiate his manoeuvre, as the traffic was a safe distance behind him. He then signaled a left turn and moved from the slow or curb lane into the fast lane. He blocked the lanes by crossing the dotted dividing line. He then turned his Unit into and through the left turn lane to make his turn. He says he never had his Unit entirely in the left turn lane but rather, he turned his Unit through the lane in “an arc”. He described his turning manoeuvre, which he says he executes routinely, as being designed to discourage other drivers from passing him on either side while he is executing his turn…

[35]         Ms. Stewart does not take issue with Mr. Dueck’s assertion that the turning manoeuvre he undertook was appropriate for executing a right-turn at this particular Intersection. Rather, Ms. Stewart’s essential contention is that Mr. Dueck should have slowed down or stopped before initiating his right turn so that he could have first ascertained Ms. Stewart’s position. Her counsel disputes that Mr. Dueck activated his four-way flashers.  In any case, if it is found that Mr. Dueck did activate his four-way flashers Ms. Stewart argues that this did not constitute sufficient warning of his manoeuvre…

[55]         In my view, the preponderance of the evidence supports a finding that Ms. Stewart failed to exercise due care in all of the circumstances. A reasonable driver in her position would have been put on notice that she should proceed with caution. Mr. Dueck’s 72-foot Unit with 14 flashing lights proceeding at 15 kph was clearly there to be seen. Contrary to the assertions of Ms. Stewart’s counsel, such a large vehicle “does not turn suddenly.” Ms. Stewart did not testify that she was watching the Unit and that Mr. Dueck failed to activate his four-way flashers or the right turn signal. She merely says that she did not observe his four-way flashers or the right turn signal. Had she been paying due care and attention to the roadway ahead of her, the operational flashing signals of his Unit – seven signal lights located at intervals down the length of each side of the Unit – would have been clearly visible to her. The four-way flashers and right turn signal would have been fully visible from the rear and passenger side of the Unit.

[56]         The Supreme Court of Canada in Swartz Bros. Limited v. Wills, [1935] S.C.R. 628 at 634, endorsed the notion that: [W]here there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible.” See also Millot Estate v. Reinhard, 2001 ABQB 1100 at para. 46. This principle has application to this case…

[65]         The only reasonable inference is that Ms. Stewart was not paying due care and attention as she was approaching the Intersection.

[66]         I find that Ms. Stewart bears the onus of proving negligence. In my view, she has failed to discharge her burden of proof. I am not persuaded on a balance of probabilities that the accident was attributable to any want of care on Mr. Dueck’s part. I find Ms. Stewart entirely at fault for the accident. Moreover, Ms. Stewart has failed to prove any negligence on Mr. Dueck’s part for the second impact she says occurred as Mr. Dueck backed up his Unit to clear the Intersection. I find that Mr. Dueck acted reasonably in the circumstances. In reaching my conclusions, I have considered the entire body of evidence and, in my view, it best harmonizes with the preponderance of the probabilities.

Injury Claim With 30 Expert Reports Deemed "Too Complex" For Jury Trial

November 23rd, 2012

Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry  striking a jury notice in a complex personal injury claim.

In the recent case (Campbell v. McDougall) the Plaintiff was involved in two collisions, the first in 2006, the second in 2008.  The trials were set to be heard together with ICBC seeking trial by jury.  The Plaintiff brought an application to strike the jury notices arguing the claims were too complex for a jury.  Mr. Justice Gaul agreed and provided the following reasons:

[14]         The plaintiff has served approximately 20 expert reports authored by 16 different experts. In reply, the defendants have served 10 expert reports prepared by seven experts. Combined, these reports amount to approximately 700 pages. The jury is therefore facing the prospect of examining, considering, digesting, and retaining information from approximately 30 reports authored by 23 experts. The range of expert evidence is as broad as it is long, and it includes: general medicine, physiatry, psychiatry, neuropsychology, psychology, anaesthesiology, neurology, plastic surgery, occupational therapy, physiotherapy, forensic engineering and economic actuarial analysis.

[15]         In addition to these expert reports, there are also over 1,200 pages of clinical records relating to the plaintiff’s condition and treatment. Many of these records will be used in cross-examination of the plaintiff and consequently the jury will need to be instructed on the proper use of such records…

[32]         In my opinion, the number of expert reports involved in this litigation, the varying opinions contained in those reports, the medical terms and principles referenced in the reports, and the plaintiff’s unique educational and professional background combine to make this case a significantly complex one…

[37]         I find that the issues that will be addressed at the joint trial of these matters will require the trier of fact to engage in a prolonged examination of documents, as well as a scientific investigation. I also find that the issues in dispute between the parties are of an intricate or complex nature.

[38]         I have reviewed and considered the authorities Ms. Stevens has submitted where juries have addressed complex issues in personal injury cases, as well as other types of claims, over the course of long trials. Having done so and having regard to the principles articulated in Nichols, it is my considered opinion that the examination and investigation in the present case cannot be made conveniently with a jury. Moreover, given the intricate and complex nature of the issues in dispute, in my view this case is not one that is suitable for trial with a jury.

[39]         The plaintiff’s applications are granted. The jury notices in both cases are struck out. The joint trial of these matters will therefore take place before a Supreme Court justice sitting without a jury.

$60,000 Non-Pecuniary Assessment For Chronic Grade II Soft Tissue Injury

November 22nd, 2012

Adding to this site’s archived posts documenting BC soft tissue injury non-pecuniary assessments, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic Grade II Whiplash Injury.

In this week’s case (Strazza v. Ryder) the Plaintiff was injured in a 2009 rear-end collision.  He suffered soft tissue damage to his neck and mid back.  His symptoms of pain, while “not debilitating” continued to the time of trial and caused him to reduce or modify his daily activities   His symptoms were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Adair provided the following reasons:

[67]         Mr. Strazza himself reports that he continues to experience pain.  It is not debilitating, and Mr. Strazza has not claimed that it is.  It has not prevented him from working or doing household chores or working on his car.  As Mr. Strazza describes it, he can basically do everything he did before the accident, but with pain.  Mr. Strazza describes his situation as one where he works and carries on despite his pain symptoms, which he does his best to alleviate by taking over-the-counter medications or by calling on someone to help.  As a result of his pain symptoms, Mr. Strazza has modified some of his activities, both leisure and work-related, since the accident.  Friends – Ms. Miller and Ms. Goalder – gave evidence of their observations in this respect, and their evidence supported Mr. Strazza’s.  The changes in Mr. Strazza are not drastic, but they are changes nevertheless…

[72]         More generally, I found Mr. Strazza to be forthright and a credible witness.  He spoke plainly and did not exaggerate.  He had no difficulty and no hesitation conceding points that were not necessarily in his favour, for example, that working for Madill was just not for him.  On cross-examination, Mr. Strazza was the opposite of defensive or argumentative, which allowed the cross-examination (by very experienced counsel) to proceed smoothly and efficiently.

[73]         I therefore find that, as a result of the accident, Mr. Strazza sustained soft tissue injuries to his cervical spine and his thoracic spine.  Specifically, and as set out in Dr. MacKean’s February 8, 2012 report, I find that Mr. Strazza sustained a grade II whiplash associated disorder in the cervical spine, which (as of trial) was resolving and a grade II whiplash associated disorder in his thoracic spine with residual pain and muscle spasm involving the left mid to lower thoracic region.  Based on Mr. Strazza’s evidence (supported by the evidence from Ms. Miller and Ms. Goalder), he continues to experience some pain as a result of his injuries.  I therefore find, based on this evidence and the opinion evidence from Dr. MacKean, that Mr. Strazza’s pain symptoms will probably not resolve completely, although they can be improved with a regular exercise program and pain relief can be obtained through occasional use of over-the-counter medication…

[81]         Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.

Late Plaintiff Testimony Does Not Result In Adverse Inference in Injury Claim

November 21st, 2012

In my ongoing efforts to track judicial commentary of late plaintiff testimony in injury litigation, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this practice.

In this week’s case (Ram v. Rai) the Plaintiff was injured in a rear-end collision.  At trial her mother and sister testified before she did.  The Defendant argued that the Court should draw an adverse inference in these circumstances.  Mr. Justice Holmes refused to do so but provided the following comments addressing the practice of late plaintiff testimony:

[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence. 

[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 

[38]         Madam Justice Humphries discussed these problems at greater length in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116.

[39]         Mindful of the potential dangers in the sequence of witnesses in this trial, I find the situation to be a relatively unusual one in which I can be fully confident that Ms. Ram’s evidence was not contaminated in any way by her having heard her mother and her sister give evidence before her.

[40]         The three witnesses gave accounts of the collision and its effects on Ms. Ram, apparent or felt as the case may be, that were consistent with each other in their broad outline but which each spoke clearly and convincingly from the witness’s own perspective.  The mother and the sister testified about what they saw, while Ms. Ram testified about what she felt. 

[41]         For example, Ms. Ram’s mother testified in general terms that after the accident Ms. Ram spent much more time alone in her room.  Ms. Ram in her testimony did not describe her conduct in quite the same way.  She testified that after the accident she felt generally unwell and could not keep up with her usual activities, friends, school, and work.  Sometimes her headaches were bad and she would need to stay alone in a dark room.  These were not identical accounts, but they described the same response from different perspectives.

[42]         In another example, Ms. Ram’s sister testified that Ms. Ram’s posture was affected by the accident.  She testified that Ms. Ram would tend to stoop, and as she began to recover the sister would often touch Ms. Ram on the nose to remind her to straighten up.  Ms. Ram made no mention of stooping or her sister touching her nose, and referred only in passing to her posture as an aspect of the consequences of her back pain.  Ms. Ram’s evidence was in no way inconsistent with her sister’s, but spoke of the pain she herself felt, rather than the stooping the sister saw.

[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.

[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

Plaintiff's Are "Entitled To Rely" On Representations of ICBC in Naming Defendants in Pleadings

November 20th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether a party should be substituted in on-going litigation where the Defendant was incorrectly named due to representations of ICBC.  In short the Court held substitution should be permitted in such circumstances.

In this week’s case (Bedoret v. Badham) the Plaintiff was involved in a 2009 motor vehicle incident.  After retaining counsel ICBC wrote to the Plaintiff’s lawyer indicating that the other motorist involved in the incident was a Mr. Badham.  The Plaintiff initiated a lawsuit against this individual.  After the limitation period expired ICBC responded to the lawsuit denying that Mr. Badham was involved in the incident.  The Plaintiff then sought to name ICBC as a ‘nominal defendant’ pursuant to section 24 of the Insurance (Vehicle) Act.  ICBC opposed the application.   Master Young criticized ICBC’s position calling it ‘astonishing‘ and finding that an order adding ICBC to the litigation was appropriate and further went on to award increased costs.  In doing so the Court provided the following reasons:

[16]         ICBC takes the astonishing position in this application that plaintiff’s counsel should not have relied on the March 1, 2010 letter setting out the third party particulars. If that letter cannot be relied on by the plaintiff’s counsel, then I wonder what the purpose of sending the letter is. The plaintiff’s counsel submits, and I accept, that it is standard practice in the personal injury bar to send an introductory letter asking ICBC for particulars and for copies of statements. It is common practice to wait for the reply letter before issuing a notice of civil claim. No letter was ever sent to the plaintiff’s counsel advising him that the contents of the March 1, 2010 letter were incorrect. It was not until the response to civil claim was filed after the expiry of the limitation period that ICBC informed the plaintiff that the named third party was not the driver of the vehicle that caused the accident.

[17]         Now ICBC opposes the application to be added as a nominal defendant. It submits that the plaintiff knew or ought to have known that ICBC was handling this file as an unidentified motorist case despite the fact that the official letter from ICBC to his lawyer said exactly the opposite…

[22]         …ICBC asserted to counsel for the plaintiff in the official first letter that Jaswinder Badhan was the driver of the vehicle. This was long after any discussions with the unrepresented plaintiff and in response to the standard letter sent at the commencement of all motor vehicle accident cases. Plaintiff’s counsel was entitled to rely on the information contained in the letter. If ICBC later learned that it was in error, it had a responsibility to correct that error so as not to mislead the plaintiff. Failing to do so until after the expiry of the limitation period and then opposing the amendment to the claim is unreasonable…

[32]         I find that it is just and convenient to add ICBC as a nominal defendant. I do not find the delay in applying to court to be inordinate. I will not order that the action against Mr. Badhan be discontinued. I will order that the misnomer be corrected.

[33]         As a result of the unreasonable position taken by ICBC in this case, I find that Scale B costs do not adequately compensate the plaintiff, and I order that the proposed defendant, ICBC, pay costs to the plaintiff in any event of the cause at Scale C.

"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

November 19th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.

In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.

Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:

[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”

[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.

[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.

[17]         The defendant’s application is therefore dismissed