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

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Archive for March, 2014

$95,000 Non-Pecuniary Assessment for Meniscal and Labral Tear

March 28th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.

In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions.  The Defendants admitted fault for both.  The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries.  These continued to post problems at the time of trial with a poor prognosis.

In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons:

[54]         I find that the most significant injuries suffered by the plaintiff in the accidents are as follows:

1.     soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;

  1. chronic headaches, associated with the neck pain;

3.     right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and

4.     left knee injury, including a meniscus tear.

The foregoing injuries continue to cause significant ongoing pain and disability currently.

[55]         I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents:

1.     right upper limp numbness and pain;

2.     low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area;

3.     right knee pain (although it is now substantially resolved); and

4.     left hip pain (although it is now substantially resolved)….

[65]         The prognosis for full recovery is negative.  It is unlikely that his neck injury will ever fully recover.  There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required.  The headaches he suffers from are related to his neck injury.  The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches.  He takes a variety of medications in order to allow him to cope.  The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic.  The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit…

]         Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.


Saskatchewan No Fault Scheme Catches All Out of Province Motorists

March 27th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Saskatchewan’s restrictive ‘no-fault’ auto insurance scheme strips the right of out of Province visitors from seeking tort compensation when injured through the wrongful driving of another in Saskatchewan.

In this week’s case (Ngo v. Luong) the parties were BC residents driving in Saskatchewan.  The Defendant lost control of the vehicle flipping over and causing injury to the passenger.  The Plaintiff started a lawsuit in BC Supreme Court hoping to get around Saskatchewan’s no-fault system.  Mr. Justice Ehrcke found that Saskatchewan’s laws applied and stripped the Plaintiff’s right to seek damages in tort.  In dismissing the claim the Court provided the following reasons:

[1]             Are British Columbia residents who are involved in a motor vehicle accident in Saskatchewan able to sue for damages in tort in British Columbia, or are they bound by Saskatchewan’s no-fault insurance scheme?…

[27]         The substantive rights of a person who is injured in a motor vehicle accident in Saskatchewan after 2002 and who did not make a tort election prior to the accident are those rights set out in Part VIII. That is true for anyone who did not make a prior tort election, regardless of whether that person is a Saskatchewan resident or not. The only difference is that the out-of-province claimant never had the possibility of making such an election. But once the accident has occurred and the claimant, whether from Saskatchewan or not, has not previously made a tort election, the claimant’s rights are those defined by Part VIII of the AAIA. Thus, the statute does not, as submitted by the plaintiff, set out a procedural election by which a claimant who has been injured in an accident can then select the means by which he or she enforces his or her rights. The rights are already defined by the statute at the moment the accident has occurred. Since the AAIA defines what the claimant’s rights are and not the means of their enforcement, the AAIA is substantive, not procedural law.

[28]         This categorization of the AAIA has the consequence that a British Columbia plaintiff who is injured in a Saskatchewan motor vehicle accident is in no better position bringing his or her suit in British Columbia than in Saskatchewan. The fact that this categorization eliminates a motive for forum shopping is an additional indicator that the categorization of the law as substantive is the correct categorization…

[30]         As I have found the AAIA to be substantive, rather than procedural law, and as the AAIA is therefore applicable to the plaintiff’s claim regardless of the fact that it is brought in a British Columbia court, the plaintiff’s request for a declaration that this action is not barred by the provisions of the AAIA is dismissed.


Accelerated Depreciation Claim Succeeds From Crash Causing $18,000 in Vehicle Damage

March 27th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accelerated vehicle depreciation following a significant collision.

In this week’s case (Pan v. Shihundu) the Plaintiff was involved in two collisions, the first causing significant vehicle damage resulting in over $18,000 of repair costs.  The Plaintiff was injured and sued for damages.  Among these was a claim for ‘accelerated vehicle depreciation’ arguing that the vehicle’s market value was deflated due to the Defendant’s fault.  ICBC opposed this claim however the Court sided with the Plaintiff.  In awarding damages for this loss Mr. Justice Punnett provided the following reasons:

160]     The plaintiff purchased the 2004 BMW M3 for $30,000 US in March 2008. As noted above, the vehicle required $18,421 in repairs following the First Accident. After that accident the plaintiff attempted to sell the BMW. He listed it on Craigslist for three months at an asking price of $27,000. It was his evidence that he had a few inquiries but no offers after advising prospective buyers of the damage caused by the First Accident. He made similar attempts to sell it in 2011 but received no response. As a result, he still owns and drives the vehicle.

[161]     The plaintiff provided an expert report from Carey Scarrow, who was qualified as an expert in the field of automotive appraisals and automotive collision repairs. He opined that as a result of the 2009 accident the vehicle sustained an accelerated depreciation of $4,000 due to the stigma associated with the BMW having been in the accident.

[162]     In examining the vehicle Mr. Scarrow noted uneven body panel alignment in the front of the vehicle and other minor deficiencies including flaws in the refinished body panels with inconsistent coating thickness. He commented that the overall repair quality was of acceptable industry standards for the calibre of car but not representative of its previous pre-accident factory standard.

[163]     Mr. Scarrow noted that it was mandatory for the seller to declare any damage over $2,000 to a prospective purchaser. He stated that the repaired areas will deteriorate at varying rates, making the repairs more evident as the vehicle ages.

[164]     He then provided his opinion that the collision repairs resulted in a value of $15,000, an accelerated depreciation of $4,000 when compared with an estimated value of $19,000 for a BMW of that make, age, and mileage but without the accident damage. In his report Mr. Scarrow indicated that he based this opinion on his inspection of the vehicle itself, references to the Sanford Gold Book, July 2013 edition (a used car valuation guide), as well as what he referred to as “local market comparable research.” In cross-examination he expanded somewhat on this methodology, noting that he relies on his years of experience in used car valuation and sales to determine the valuation numbers. In this case he said that he also posted the car for sale for a period of three to four days and gauged the response from potential buyers. He noted that potential buyers for vehicles of this type are particularly “fussy” about the details of previous damage and repairs.

[165]     The plaintiff relies on Signorello v. Khan, 2010 BCSC 1448, and Cummings v. 565204 B.C. LTD., 2009 BCSC 1009. Signorello stands for the proposition that a vehicle need not be sold in order to demonstrate an accelerated depreciation loss (para. 29); see also Cummings, at para. 73.

[166]     The defendants acknowledge that claims for accelerated depreciation are good in law. However, they submit there is a heavy burden on a plaintiff to adduce sufficient evidence to prove that accelerated depreciation has actually taken place. They rely on Miles v. Mendoza, 1994 CanLII 419 (B.C.S.C.), and Burrard Import Ltd. v. Budget Rent-A-Car of B.C. Ltd, 2001 BCPC 75. In Miles, the court noted that “difficulties of proof” arise where the car is not sold after the accident, as the depreciating effect of the accident declines over time. The court also said that expert evidence of that only spoke to the general “stigma” attaching to damaged vehicles was not sufficiently persuasive proof to award damages for accelerated depreciation: “it cannot be “assumed”, by virtue of the occurrence of an accident requiring extensive repairs, that a properly repaired vehicle has suffered accelerated depreciation” (para. 40).

[167]     Burrard followed Miles in finding that the evidence did not meet the necessary standard given the claimant’s expert’s opinion amounted to no more than a simple proposition and as a result was not the type of persuasive evidence contemplated by the jurisprudence.

[168]     The defendants submit that the plaintiff must prove that the accelerated depreciation actually occurred by adducing evidence that goes over and above the simple proposition that a car which has been in an accident, even though properly repaired, carries a stigma. They say that in this case the plaintiff’s evidence does not go beyond asserting the existence of such a stigma.

[169]     I cannot accept this submission, for two reasons. First, in my view, the evidentiary standard as described in Miles has not been applied quite so strictly in recent decisions. In Cummings, for example, Madam Justice Gerow awarded $7,600 in damages for accelerated depreciation. There the evidence consisted of an automobile valuation expert’s opinion that the plaintiff’s vehicle had suffered an accelerated depreciation of 20% following the accident. There is no comment in the decision as to the factual basis for this opinion and no suggestion that it went beyond the expert’s experience of the “stigma” in the marketplace. The owner had also attempted to trade the vehicle in but was informed by the dealership that they did not accept trade-ins on vehicles with more than $5,000 in damage.

[170]     In Signorello the car was an extremely rare exotic high-performance luxury sports car, manufactured by Mercedes-Benz. The valuation expert set a value based on conversations he had with various Mercedes-Benz dealers in the province. The court identified some concerns with this evidence, noting that the defendant had argued that the expert’s opinion was based on hearsay and opinion evidence itself. Justice Grauer then said at para. 25:

[25]      … the starting point for any vehicle appraisal is the Canadian Black Book, a guide to the wholesale value of used vehicles in Canada relied upon by dealers across the country. This car is so rare, however, that it does not appear in theBlack Book. Of course the figures in that book could also be described as opinion evidence … In the particular circumstances of the case, it is my conclusion that it was not an inappropriate way for Mr. Cogbill to approach the problem, although it would have been preferable had he included the specifics of his conversations. As it was, he did indicate the dealers whom he consulted, …

[171]     From this I take that the expert may rely on the Black Book or similar valuation guides in coming to an opinion as to the value of the vehicle. It also suggests that the “difficulties of proof” that may arise if the car is not sold can be overcome by an expert’s opinion.

[172]     Second, even if one accepts that the standard from Miles still applies, I am of the view that the evidence tendered here does go beyond a “bare” opinion that the car has suffered depreciation due to a “stigma.” Mr. Scarrow based his valuation on a long history of appraising cars, including BMWs. He also relied on the Gold Book, a valuation guide, and market research that he described in cross-examination. The plaintiff also provided evidence that he had attempted to sell the vehicle at a reduced price following the accident and received no offers.

[173]     I conclude that the plaintiff’s evidence is sufficient to establish accelerated depreciation in value for the BMW. I accept Mr. Scarrow’s figures and award damages of $4,000.


Your Son’s Piano Practice it Too Loud!

March 26th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a dispute between neighbors.

In today’s case (Wolodko v. Zhang) the parties lived in adjoining strata units.  The Plaintiffs sued the Defendants seeking an injunction arguing the Defendant’s son’s piano playing was a nuisance.

In dismissing the lawsuit and ordering that the Plaintiffs pay the Defendants costs Mr. Justice Masuhara provided the following reasons:

[36]         The plaintiffs have noted numerous instances when they say that the piano playing has interfered with the enjoyment of their unit.  Mr. Zhang does not contest these occurrences.  There is no question that piano playing can constitute a nuisance.  There also appears to be sensitivity to musical instrument playing within this specific complex as evidenced by the bylaw and I recognize that the subject location is a residential high rise strata.  I also note that at one point the Council found that the piano playing had contravened the bylaws.  However, these facts in concert with the plaintiffs’ numerous complaints are not sufficient to establish nuisance.  The test, as stated above, is an objective one relative to the locality.  In my view the evidence is not sufficient to find that a reasonable person would conclude that the described incidents of piano playing constitute a nuisance. 

[37]         In the circumstances here where:

(a)            there are only the complaints of Mr. and Mrs. Wolodko in respect to the piano noise;

(b)            there is an absence of complaints regarding the Zhang unit from others in the complex, which can be contrasted with another piano-noise complaint problem in the complex arising from unit #904 in 2009, where there were several complaints of noise throughout the complex and from people residing on different floors (7th to 10th) and which complaints led to fines being imposed;

(c)            there are no recordings of the complained of piano playing;

(d)            there is the absence of any objective measures or readings of the piano noise; and

(e)            the plaintiffs refused to permit members of the Council to come to their unit to listen for themselves to determine if there had been a contravention of the noise bylaws. 

the case of nuisance, objectively, cannot be said to have been made out.  A further difficulty here for the plaintiffs is the fact that they consented to the dismissal of their action against the strata, which related to alleged infractions of the noise bylaws. 

[38]         The plaintiffs’ action is dismissed.  The defendant is awarded costs on Scale B.

Failing to Wear Seatbelt Results in Increased Injuries and Decreased Damages

March 26th, 2014

Adding to this site’s archived cases addressing damages when a Plaintiff fails to wear a seatbelt, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, reducing a Plaintiff’s damages by 25% due to not wearing a seatbelt.

In this week’s case (Mosimann v. Guliker) the Plaintiff was involved in three collisions.  She was not at fault for any of them.  She suffered chronic injuries as a result of these crashes.  In one of the collisions she was not wearing a seat belt and her face hit the dashboard.  Although the Plaintiff hired an expert who testified that this did not contribute to her injuries Mr. Justice McEwan rejected this evidence and reduced the Plaintiff’s damages by 25%.  In reaching this conclusion the Court provided the following reasons:

[28]         Although Dr. Whetter was somehow under the impression that the plaintiff was wearing a seatbelt, it is clear that that was not the case. According to Craig Lukar, a professional engineer who gave an opinion to the court, however, the plaintiff would have suffered her facial injuries in any event, that is, even she had been wearing seatbelt.

[29]         Mr. Lukar’s analysis proceeded by using an exemplar vehicle (the one involved In the accident was no longer available) and placing the plaintiff in the passenger seat, demonstrating her position. It appears to be critical to the analysis that the plaintiff is short and the seat is too long for her to sit with her bottom all the way to the seatback without extending her legs. That is not evident in the third of the photos put in evidence, where the plaintiff appears to be seated comfortably back in the seat. Mr. Lukar suggests that the photograph is deceiving in that regard. The sixth photo shows the plaintiff apparently striking a part of the console, but from a position well advanced from the back of the seat. The dashboard in front of the passenger’s seat is significantly farther away than an instrument panel to the left of the seat, which is what Mr. Lukar suggests the plaintiff struck.

[30]         What the photographs did appear to show was that if the plaintiff was sitting with a properly adjusted lap belt, even allowing for some stretching or body compression that would allow the plaintiff to move forward, the arc of her upper body would fall short of hitting the dashboard. In making this observation, I am not substituting my own interpretation of the evidence for that of Mr. Lukar. I am simply saying that despite his qualifications, Mr. Lukar was not able to satisfy me that what he described displaced the inference the court might have drawn without assistance. His suggestions were simply unconvincing.

[31]         The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s evidence on the basis that an adverse inference could be drawn from the defendants’ failure to produce an expert report. That is not, in my view, a proper approach to opinion evidence. While it may be risky, counsel are entitled to rely on cross-examination and argument in relation to an expert witness as with any other witness. The defendants referred to Lakhani v. Samson, 1982 CarswellBC 2262, [1982] B.C.W.L.D. 1126, 70 B.C.L.R. 379 a decision of McEachern C.J.S.C. at para. 3:

I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

[32]         Sometimes experts state the obvious, in which case they are superfluous. Sometimes they do not. On those occasions, it is up to the trier of fact to decide whether the inference the expert invited has the authoritative force of training or experience, or whether it is just not helpful. Having done my best to assess Mr. Lukar’s surprising conclusion – that failure to wear a lap belt would have made no difference in this face-hit-the-dashboard collision – I am simply unable to say that I am persuaded that that is the correct inference. I assess the plaintiff’s contributory negligence at 25%.


The “Heavy Burden” of BC’s Loser Pays System

March 25th, 2014

I have frequently highlighted BC’s loser pays system where a losing litigant is typically ordered to pay costs to the opposing side.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that this result can be harsh and is typically unyielding to factors such as sympathy and financial hardship.

In this week’s case (Laktin v. (Vancouver) City) the Plaintiff was shot three times by police officers rendering him paraplegic.  He sued however his claim was ultimately dismissed following a 5 week jury trial.   Vancouver sought their costs from the Plaintiff who opposed the application arguing financial hardship.  Mr. Justice Pearlman noted the loser pays system does not yield to financial concerns in and of themselves.  In awarding costs the Court noted as follows:

[24]         The plaintiff says that the defendants should be denied their costs on the basis that his life was permanently and catastrophically altered by the event of January 21, 2006 and his future care and financial support are now in jeopardy. Mr. Laktin argues that the costs of a five-week trial will impose an onerous financial burden, which the plaintiff lacks the means to satisfy.  I accept that Mr. Laktin is in difficult financial circumstances, and that an order requiring him to pay costs to the defendant will be a real and heavy burden for him.  While I have a great deal of sympathy for the plaintiff, the case law clearly establishes that the unfortunate personal circumstances and financial hardship of a litigant are not, standing alone, factors warranting a departure from the general rule that costs follow the event: Morris at para. 36; Chen at para. 11;Vesuna v. British Columbia (Transportation), 2011 BCSC 1618 at para. 8.

[25]         In Robinson v. Lakner (1998), 159 D.L.R. (4th) 191, the Court of Appeal, reversing the decision of the trial judge who had limited the costs payable to the successful defendant to $1,500 because the plaintiff was in difficult financial circumstances, held at para. 5, that “financial hardship in itself is not a sound basis for departing from the usual rule with respect to costs”. 

[26]         In Cowherd v. Fraser Valley Health Region et al, 2004 BCSC 698 at para. 5, Madam Justice Ballance cited Brown v. Blacktop Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76 (C.A.); Zelenski Estate v. Fairway(1998), 60 B.C.L.R. (3d) 76 (C.A.); Churchland v. Gore Mutual Insurance Co. (unreported), September 23, 1999, No. S09912, Vancouver (S.C.); and Robinson for the principle that “in general, the unfortunate personal circumstances and characteristics of a litigant are not to be taken into account by the court in exercising its discretion in making an award of costs”.

[27]         In Morris at para. 38, Madam Justice Ker concluded that the court is unable, on any principled basis to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[28]         At para. 39, Her Ladyship cited the following passage from the Reasons for Judgment of Greyell J. in Chen at para. 15:

[39]  To do otherwise would lead to inconsistent and no doubt unreasonable results. As Greyell J. so eloquently noted in Chen at para. 15:

[15] To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper. It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

[29]         I conclude that the plaintiff’s difficult personal circumstances and financial hardship, standing alone, do not provide grounds for the Court to depart from the normal rule that costs should follow the event…

[49]         I conclude that there are no special circumstances in this case that would warrant a departure from the general rule that costs should follow the event.

[50]         Accordingly, the defendant, City of Vancouver, will have costs of this action at Scale B, together with its reasonable disbursements.


BCCA – Obtaining Judgement Below Amount Sought Is Not a Proper Reason to Deprive Costs

March 24th, 2014

Reasons for judgement were released last week by the BC Court of Appeal confirming that a party who is awarded damages below the amount sought, even if significantly so, is not a reason in and of itself for depriving the party of costs.

In last week’s case (Loft v. Nat) the Plaintiff was injured in a motor vehicle collision and sued for damages.  At trial the Plaintiff sought substantial damages of over $1.8 million.  The Plaintiff’s claims were largely rejected with damages just over $60,000 being awarded.  The trial judge found that the Defendants had been largely successful and ordered that the Plaintiff pay the Defendants costs.  The Court of Appeal found this was plainly an error.  In reaching this conclusion the Court provided the following reasons:

[46]        Pursuant to Rule 14-1(9), costs in a proceeding must be awarded to the successful party unless the court otherwise orders. At its most basic level the successful party is the plaintiff who establishes liability under a cause of action and obtains a remedy, or a defendant who obtains a dismissal of the plaintiff’s case: Service Corporation International (Canada) Ltd. (Graham Funeral Ltd.) v. Nunes-Pottinger Funeral Services & Crematorium Ltd., 2012 BCSC 1588, 42 C.P.C. (7th) 416.

[47]        In this proceeding Mr. Loft was awarded damages for injuries he had suffered in the motor vehicle accident. The respondents had denied liability until shortly before trial. Although the damage award was far less than sought, Mr. Loft was the successful party. The fact that he obtained a judgment in an amount less than the amount sought is not, by itself, a proper reason for depriving him of costs: 3464920 Canada Inc. v. Strother, 2010 BCCA 328, 320 D.L.R. (4th) 637.

[48]        The trial judge’s stated reason for awarding costs to the respondents was that the respondents had been largely successful in all areas of the claim. With respect, that decision is wrong in principle and cannot stand. I note that on the hearing of the appeal the respondents did not suggest otherwise.

[49]        The fact that a party has been successful at trial does not however necessarily mean that the trial judge must award costs in its favour. The rule empowers the court to otherwise order. The court may make a contrary order for many reasons. One example is misconduct in the course of the litigation: Brown v. Lowe, 2002 BCCA 7, 97 B.C.L.R. (3d) 246. Another is a failure to accept an offer to settle under Rule 9-1. A third arises when the court rules against the successful party on one or more issues that took a discrete amount of time at trial. In such a case the judge may award costs in respect to those issues to the other party under Rule 14-1(15): Lee v. Jarvie, 2013 BCCA 515. Such an order is not a regular part of litigation and should be confined to relatively rare cases: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142; Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, 97 B.C.L.R. (4th) 256. Whether a judge will order otherwise in any particular case will be dependent upon the circumstances of that individual action.

[50]        Costs are very much a matter of the trial judge’s discretion. In the circumstances of this case, the basis upon which that discretion was exercised was in error. That said, the trial judge remains in the best position to determine the proper costs order and to what extent, if any, the offer to settle that was made in this case should impact on costs. On the hearing of the appeal both parties suggested that if the costs appeal was allowed, costs should be referred back to the trial judge.

[51]        I would allow the costs appeal and refer the matter of costs back to the trial judge for a further determination.


Previous Similar But Recovered Injuries Are Not Indivisible

March 21st, 2014

Interesting reasons for judgment were released this week by the BC Supreme Court, Campbell River Registry, addressing whether previous similar but recovered injuries are indivisible for the purpose of damage assessment.  In short the Court held that they are not.

In this week’s case (Lawson v. Kirk) the Plaintiff was injured in a 2010 collision.  The Defendant “ has admitted liability for the accident and -quite refreshingly – has admitted the plaintiff was injured in the accident.”.  The Plaintiff has similar injuries fro a previous collisins although these were recovered prior to the 2010 collision.  In finding such injuries divisible Mr. Justice Johnston provided the following reasons:

[45]         Ms. Lawson has agreed that the injuries she suffered in her 2007 accident were very similar to those suffered in this accident, and that her complaints in late 2009, arising out of the 2007 motor vehicle accident, were very similar to complaints she had in 2012 and 2013, following this accident. That raises the question of divisible or indivisible injuries.

[46]         I conclude that, for the purposes of causation, the injuries from the two accidents are divisible. Although Ms. Lawson had very similar complaints of discomfort arising from the same areas of the neck and back, I accept her evidence that her symptoms from the first accident had resolved by the time of the second accident. From the point of view of damage assessment, I find there was no measurable risk that the injuries caused in the first accident which would have resulted in ongoing losses in any event, so that pre-existing risk need not be taken into account in assessing the damages flowing from this defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.

[47]         I say that for these reasons:

·       Ms. Lawson was able to do all of the housework while she and Mr. Furnseth lived in Fort St. John from December 2009 to May 2010;

·       In that same period, Ms. Lawson drove the considerable distance between Fort St. John and Campbell River and back again two or three times with no difficulty;

·       When she returned to Campbell River in late May 2010, Ms. Lawson resumed her duties at the bakery, with no difficulty;

·       Ms. Lawson took up the second job at a fitness center in June 2010, again without difficulty;

·       Ms. Lawson participated in a soccer tournament on the Canada Day weekend in 2010 without difficulty.

[48]         I have accepted Ms. Lawson’s evidence that she was able to do the above activities without difficulty. I have discounted Mr. Furnseth’s evidence that, while the two were in Fort St. John, he and Ms. Lawson engaged in activities such as riding off-road vehicles because Ms. Lawson did not testify to those activities.

[49]         The view of the evidence most favourable to the defendant would be that Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who was perhaps more susceptible to injury as a result of the earlier accident, that is to say, in which Ms. Lawson’s damages should be assessed on the basis that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.

Where All The Crashes Are…

March 20th, 2014

Late Formal Settlement Offers Still Capable of Triggering Costs Consequences

March 20th, 2014

Two judgement were released this week by the BC Supreme Court demonstrating that formal settlement offers made late in the litigation process are still capable of triggering costs consequences.

In the first case (Dennis v. Fothergill) the Plaintiff was injured in a motor vehicle collision and sued for damages.   The Defendant made a formal settlement offer for $279,000 days before the start of trial.  Following trial global damages of just over $48,000 were awarded.  The Plaintiff argued that no costs consequences should be triggered, in part, due to the timing of the late formal settlement offer.  Madam Justice Bruce disagreed and awarded the Defendants costs and disbursements from the date of the offer onward and stripped the Plaintiff of her costs and disbursements of the trial.  In addressing the timing of the offer the Court provided the following reasons:

[30]         The plaintiff had three days to consider the offer and, while her counsel was out of town at the time the offer was served, she had an opportunity to speak with him by telephone prior to its expiry. The offer was straightforward and did not involve complicated calculations that would have required further time to consider and evaluate. Counsel deposes that the plaintiff’s alcohol consumption was interfering with his ability to obtain instructions from her at the time of the offer; however, the plaintiff’s mental health or state of sobriety was not of such a serious nature that it led counsel to apply for an adjournment of the trial that began within days of the offer. At no time was the Court advised that the plaintiff was unable to testify or appear for her trial due to mental health concerns.

[31]         I find the terms of the offer were clear and unambiguous. The amount of Part 7 benefits and the possible income tax holdback was nominal compared to the amount of the defendant’s offer to settle. The offer was also expressed to be “new money”, which meant in addition to Part 7 benefits paid to the plaintiff in advance of trial. The offer of settlement was clearly not a “nuisance offer” that could be easily dismissed by the plaintiff.

[32]         For these reasons, I find the plaintiff ought reasonably to have accepted the offer of settlement.

In the second case (Brewster v. Li) the Plaintiff was injured in a 2008 collision.   The parties exchanged a series of formal settlement offers, the most relevant of which being a defence offer of $450,000 made 4 days prior to trial.  At trial the Plaintiff sought damages of approximately $1,750,000.  Much of the sought damages were not awarded with a judgement of just over $418,000.

The Plaintiff argued that no costs consequences should accrue.  Mr. Justice Voith disagreed and stripped the Plaintiff of post offer costs and disbursements.  In addressing timing of the offer the Court provided the following reasons:

[25]         The timing of the Last Offer is also relevant. There is no requirement in Rule 9–1, as there was in earlier Rules, that an offer be made within a specific time from the start of trial. In several cases judges have used seven days as a reasonable time to consider an offer; see for example Bailey at para. 39; McIsaac v. Healthy Body Services Inc., 2010 BCSC 1033 at para. 87; Gonzales at para. 51.

[26]         It is clear, however, that this issue is largely driven and governed by context. In Bennett, where the defendant made an offer that was open for two days, Madam Justice Dardi succinctly said:

[34]      Mr. Bennett submits that the Second Offer should be given no force and effect because it was received “some two clear working days before the commencement of the trial.” Rule 37B does not contain the same seven-day notice provision as its predecessor. No inflexible “seven-day” rule is imposed by the Rules; rather every case must be judged on its own facts: Dodge v. Shaw Cablesystems Ltd., 2009 BCSC 1765. The proper issue for consideration is whether, in all the circumstances, the offeree had a reasonable opportunity to consider the offer: Uppal v. Rawlins, 2010 BCSC 11.

[35]      The Second Offer was made shortly before trial. The impact of the lateness of the offer was tempered by Mr. Bennett’s awareness of the settlement negotiations that had previously occurred between counsel. Given Mr. Bennett’s personal knowledge of the material facts as referred to above and his representations to the CRA in April 2005 that he had no interest in the Property, I find that neither the timing of the offer nor the late disclosure of the income tax information negatively impacted his ability to meaningfully evaluate the Second Offer. In all the circumstances, I find that as of November 19, 2008, Mr. Bennett was in a position to reasonably evaluate the Second Offer, that the two days were reasonably sufficient time for him to do so, and that he should have accepted the Second Offer.

[27]         In Enviro West, Madam Justice Boyd considered that an offer which was only open for less than two days provided the plaintiff with adequate time to properly consider the offer. She was influenced both by the fact that the defendants had made an earlier offer that “was not far different” from its last offer and by the fact that the plaintiff was “a sophisticated litigant” (at para. 55).

[28]         In Uppal v. Rawlins, 2010 BCSC 11, Mr. Justice Grauer dealt with an offer that was open for 51 hours and said:

[20]      In this case, although the offer was open for only a relatively short period of time, it was presented just before trial, when all discovery of documents and examinations for discovery had been completed, and when the issues had been fully aired in a Rule 18A application for judgment brought by the defendants. That application was dismissed because the chambers judge found that the case was not suitable for determination by summary trial given the credibility issues. Nevertheless, the position of the defendants was made abundantly clear to the plaintiffs. There would be no surprises at trial. Moreover, the perjury and forgery of the plaintiff Navjeet Uppal had been exposed, and the defendants had obtained admissions on discovery that had seriously imperiled the plaintiffs’ case.

[21]      In all of these circumstances, I have no hesitation in concluding that the offer was one that ought reasonably to have been accepted within the 51 hours or so during which it was open for acceptance. Had the plaintiffs accepted it, they would have saved $26,000 that they will now lose, they would have received $40,000 that they will not now get, they would have saved the time and expense of many days of trial, and they would have avoided all their additional liability for costs.

[29]         Finally, in Wright v. Hohenacker, 2009 BCSC 996, Madam Justice Fisher considered that four days was a reasonable time to weigh an offer in circumstances where the parties “were exchanging offers for a week before” (para. 17).

[30]         In this case counsel for Ms. Brewster emphasized the plaintiff’s emotional frailty. He argued, and she deposed, that she had only been examined for discovery a week or so before the Final Offer was made, that that process had been upsetting to her and further that when she received the Last Offer she felt “doubtful, angry and bullied”.

[31]         Though Ms. Brewster may have felt these things, there was no objective reason to feel bullied. Similarly, the fact that her examination for discovery only took place shortly before the trial does not appear to have been through any fault of the defendant.

[32]         Having said this I do accept that receiving two different offers, which replaced an earlier offer, in close succession and without any explanation, late on the Friday before the week in which the trial started, had the prospect to confuse and be more difficult to deal with. I further accept, having seen Ms. Brewster give evidence, that she would have been somewhat fragile emotionally on the eve of trial.

[33]         Accordingly, different aspects of the considerations raised by Rule 9–1(6)(a) favors each of the parties. On balance, therefore, this consideration is neutral…

[39]         I return to where I started. The dominant object that animates Rules 9–1(5)–(6) is the promotion of reasonable settlements. The plaintiff’s position, that she be awarded the costs of the trial notwithstanding the Last Offer, completely ignores this object.

[40]         I consider that a result which properly gives effect to Rule 9-1(4) and which properly reflects the additional considerations that I have identified, would be to deprive the plaintiff of all of her costs, including all disbursements, after February 11, 2013. This result accords with the result arrived at by the court, for example, in each of Tompkins at paras. 28-31 and Wafler at para. 41.