ICBC Law

BC Injury Law and ICBC Claims Blog

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

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

Archive for March, 2017

Judge Compels Plaintiff to Sign “Consent Form” In Court Ordered Doctor Exam

March 31st, 2017

The law is split on whether a litigant can be forced to sign a consent form when attending a court ordered medico-legal appointment.  Today reasons for judgement were published providing further judicial commentary on the topic finding such an order is permissible.

In today’s case (Wee v. Fowler) the Plaintiff was involved in a vehicle collision and sued for damages.  In the course of the lawsuit an order was made that the Plaintiff attend a defence medical exam. When the Plaintiff attended the doctor required a consent form to be signed.  The Plaintiff refused and the exam did not take place.

The Defendant obtained a new order requiring attendance and signing the form.  In making this order Madam Justice Harris provided the following reasons:

[37]         The only remaining issue is whether the form of consent which Dr. Hirsch proposed is reasonable. While it is not strictly necessary for me to address this issue in light of my conclusions above, in the circumstances of this case, I consider it appropriate to do so.

[38]         The plaintiff objects to the form on the basis that:

                           i.          it requires the plaintiff to agree that Dr. Hirsch is independent of the parties;

                          ii.          that she is not in a doctor/patient relationship with him;

                        iii.          that she received an explanation as to the nature of the assessment; and

                        iv.          that she was there voluntarily or pursuant to a court order arising from Rule 7‑6(1).

[39]         The form of consent proposed by Dr. Hirsch was as follows:

Consent to Independent Medical Examination

I, ________________, date of birth ___________________ consent to participate in an independent medical examination (“IME”) conducted by Dr. Gabriel Hirsch. I am participating in the IME voluntarily or pursuant to Court Order arising from Rule 7-6(1) of the British Columbia Supreme Court Civil Rules.

I understand that Dr. Hirsh is not my treating physician and that no doctor/patient relationship arises from the IME. I also understand that Dr. Hirsch is independent of the parties involved in this matter and is not an employee of the party requesting the IME.

I acknowledge that I have received an explanation as to the nature of the assessment that will be undertaken in the IME and I authorize Dr. Hirsch to perform an assessment that includes a medical history, physical examination, review of medical imaging, tests, medical records, reports, and/or employment and school records related to my condition.

I understand that the assessment may be terminated if Dr. Hirsch determines that it is in the interest of my health and safety. I understand that I may choose to stop the assessment at any time.

I acknowledge that subsequent to the IME and pursuant to Rule 7-6(1) of the British Columbia Supreme Court Civil Rules, Dr. Hirsch may provide a medical-legal report to the referring source for the purposes of litigation. I release Dr. Hirsch and his employees from any claims which may arise as a result of the release of the above information. I am aware that the right to distribution of the report lies with the referring source and not Dr. Hirsch.

In signing this document I consent to take participate in this IME.

Dated this _________ day of _____________, 2016.

 

Signature of Evaluee: _________________________

Print Name: _________________________________

Signature of Witness: _________________________

Print Name: _________________________________

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

[44]         Accordingly, I find that the consent form proposed by Dr. Hirsch to be reasonable.


Court Dismisses Injury Claim in “Slow-Moving Parking Lot Accident”

March 29th, 2017

I have spent much time documenting judicial treatment of the so-called ‘low velocity impact’ defence.  In short, courts routinely accept motorists can be injured in low velocity collisions.  Despite this, courts occasionally dismiss an injury claim involving modest forces.  Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In today’s case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.

The Plaintiff alleged injury.  The Court rejected this noting that “ I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury“.

In dismissing her injury claim Mr. Justice Brown provided the following reasons:

[53]         I will now discuss the evidence and state my findings:

1.       The Chevrolet was stationary at impact.

2.       The defendant, Mr. Raveendran, started the Honda. He took his foot off the brake. The tires slowly completed their circumference, two to three turns of its tires, before the right side of the Honda contacted the left driver-side door of the Chevrolet.

3.       The vehicles were at a slight angle on impact.

4.       The point of impact was not bumper to bumper. There is no indication the solid substructures of the vehicles were involved. The visible damage was not deeply intrusive into the bodies of the vehicles; a fairly shallow dent of the surface of the driver’s door of the Chevrolet and some surface scraping of the right rear panel and leading edge of the bumper on the Honda is all that is noteworthy.

5.       The plaintiff relied on the fact that the cost of repairing the Honda was $1,200 and the Chevrolet, written off, $1,500. Considering the cost of vehicle repairs generally, these figures do not denote significant impacts, rather, more likely, in my opinion, the costs of materials and labour for prepping, taping, sanding, painting, et cetera. There is no indication of parts replacement or significant structural damage requiring repair.

6.       There is no evidence either vehicle was moved from its path or static position, or moved about by the impact.

7.       The plaintiff complained only of a jolt, the nature of which she had difficulty explaining, but she denied her body came into contact with the interior of the car or that she was moved about.

8.       The video surveillance segments, viewed in congress with the photographs of the vehicle damages, which the court viewed in the range of 10 times, convey a strong impression of a very minor impact, most unlikely to cause injuries, let alone ones requiring a recovery period of three to four years.

9.       The plaintiff had recovered from the injuries related to her previous accident.

10.     The plaintiff reported immediate onset of symptoms, but instead of reporting to Dr. Kaler’s office about 100 feet away, or to the hospital, drove to the ICBC Claim Centre to report the Accident.

11.     The plaintiff submits the fact she attended physiotherapy sessions after the birth of her child argues against invented symptoms. But as I mentioned earlier, there is no evidence showing for what reasons she attended the clinics, the nature of the treatments, the symptoms reported or observations made. Dr. Kaler had clinically noted concerns of morbid obesity; and, as the plaintiff granted, giving birth to a child can cause physical problems. I cannot find a link between the need for physiotherapy and the alleged trauma.

12.     As for depression, Dr. Kaler’s evidence shows the plaintiff earlier had been concerned about becoming pregnant again. The basis for linking this minor accident to alleged depression, say, stemming from a chronic pain syndrome, is not present. There is no diagnosis of chronic pain, for example, to generate a logical medical link between physical trauma and depression usually seen the cases.

13.     It is not plausible, and there is no persuasive medical legal evidence to show, that it would take the plaintiff three years to recover from trauma allegedly caused by the very modest forces involved in this parking accident.

[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[56]         In Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:

[18]      I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

[19]      An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.


Indivisible Injury Principle Applied Where Injuries Aggravated in Limitation Barred Event

March 28th, 2017

Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.

In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions.  The first in 2011.  She sued the at fault motorist who admitted liability.  She was involved in a second collision in 2014.  She was a passenger in her husband’s vehicle.  He was at fault for the second crash but she chose not to sue and the limitation period to do so expired.  The second crash aggravated the injuries from the first.

The Defendant argued that the Plaintiff’s damages must be reduced to the extent that the second crash aggravated them.  The Court disagreed noting the principle of indivisible injury allows the Plaintiff to fully recover damages from the first Defendant who is then burdened to seek indemnification from other contributing tortfeasors.  In applying the indivisible injury principle in the Plaintiff’s favour Mr. Justice Bracken provided the following reasons:

[117]     In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident.  She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.

[118]     In Bradley v. Groves, 2010 BCCA 361 at paras. 32 – 34, the court said:

[32]      There can be no question that Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]      The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]      That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[119]     In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident.  He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible.  The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act.  Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.

[120]     At para.60, Burnyeat J. stated:

[60]      I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[121]     In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.

[122]     I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu.  There was no right of action in British Columbia against the person liable for the second accident.  In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.

[123]     In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

[124]     It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband.  That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff. 

[125]     The plaintiff obviously knew of her right to commence an action from the time of the accident.  The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident.  I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.


Street Racer Found Partly Liable for Other Vehicles Fatal Crash

March 27th, 2017

Interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a street racer partly liable for the death of a passenger in another vehicle that he did not collide with.

In today’s case (Suran v. Auckland) Cadillac and a Chrysler 300 were involved in a street race.  Police subsequently blocked off the road and the driver of the Cadillac was apprehended  The driver of the Chrysler backed up and drove around the road block and “proceeded down a steep embankment and dropped over a retaining wall, before finally coming to rest at the bottom of a ravine.”.  A passenger in the vehicle  died when”he was unable to extricate himself from the vehicle when it caught fire. His body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground.

The passenger’s family sued and both motorists were found partly to blame with the passenger himself being faulted with 25% contributory negligence.  In holding the driver of the Cadillac partly at fault for the death even though he was in police custody at the time Madam Justice Burke provided the following reasons:

[195]     I conclude Mr. Marwaha in the Cadillac and Mr. Auluck in the Chrysler 300 were engaged in a common (unlawful) course of action that ultimately precipitated the catastrophic accident and death of Mr. Suran. It was reasonably foreseeable, as argued by Ms. Suran, that participation by Mr. Marwaha in a street race at high speed on a busy street would attract police attention and action, which it did. It was also reasonably foreseeable that Mr. Auluck would flee the police as he did, based on his erratic and dangerous behaviour throughout the evening.

[196]     There is, therefore, sufficient proximity and foreseeability for Mr. Marwaha to be found partially liable for the accident. As he was indeed stopped by the police and could no longer participate in the race, I conclude Mr. Marwaha’s culpability for the accident lies at 10%.

 


Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

March 21st, 2017

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.

In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff.  The Defendant was uninsured at the time and represented himself in court.  As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason.  On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant.  The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[47]         This turn of events significantly undermined the reliability of the defendant’s evidence.

[84]         … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.


$85,000 For Chronic Myofascial Pain From Three Collisions

March 16th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.

In today’s case (Dhillon v. Singer) the Plaintiff was involved in three collisions which the Defendants admitted  fault for or were found liable.  The collisions resulted in chronic myofascial pain with a poor prognosis for further improvement.  In assessing non-pecuniary damages at $85,000 Madam Justice Fleming provided the following reasons:

[134]     Regarding the plaintiff’s physical injuries and symptoms my analysis and findings are as follows:

·       After the first accident, Mrs. Dhillon experienced fairly intense pain arising from soft tissue injuries to her neck, upper back and right shoulder that interfered with her sleep, as well as headaches. Prior to returning to work, her pain symptoms had reduced significantly but they were not fully resolved. The plaintiff certainly felt well enough to work full-time. I accept that after she returned to work as a parking lot attendant, pain symptoms in her neck and her shoulder sometimes worsened causing her sleep difficulties.

·       I find the plaintiff continued to experience some pain in her shoulder and neck prior to the second accident although her symptoms were not as intense or constant as she described, and were likely mild. Mrs. Dhillon testified that despite telling her doctor she was still in significant pain in January 2012, he provided her with a medical note to submit along with her application to the pharmacy assistant program confirming she was in good physical and mental health. I am not persuaded the doctor would have written such a note if the plaintiff was at that time complaining of significant ongoing pain symptoms. I also put limited weight on the gap in his clinical records from May 20, 2011 to March 2, 2012 which demonstrate the plaintiff otherwise attended appointments regularly in relation to the accidents. I consider the gap, bearing in mind the decision of Justice N. Smith in Edmondson v. Payer, 2011 BCSC 118, aff’d 2012 BCCA 114, regarding the admissibility and use of clinical records. At paras. 36 and 37 he concluded the absence of any record cannot be the sole basis for an inference about whether an injury or symptom existed or not.

·       I find the second accident likely reinjured the soft tissues in the plaintiff’s neck and upper back as well as the other shoulder area, worsening and broadening her pain symptoms to some extent.

·       I accept the plaintiff experienced some increased pain and discomfort while studying for prolonged periods, particularly after the second accident, given the posture required. This may have affected her ability to concentrate to some extent. Her timely, very successful completion of the pharmacy assistant program satisfies me, however, that both before and after the second accident, those symptoms were not meaningfully disabling. I do not accept her evidence that she was required to study twice as much to achieve such high grades.

·       I find that by September 2012 the plaintiff’s pain symptoms were mostly mild, not modest as she testified.

·       I accept the plaintiff suffered from a flare up in her pain symptoms, accompanied by fatigue and some psychological symptoms in May 2013 which lasted for at least two weeks. The date on a medical note prepared by her family doctor corroborates her evidence regarding the timing of the flare up. Employment records confirm she worked less for a two week period during that month.

·       Following the third accident, I find the plaintiff experienced a significant increase in the level and scope of her pain caused by new soft tissue injuries that extended to her low back and an aggravation of previous soft tissue injuries in her shoulders, upper back and neck, along with worsened headaches. I also find that as a result of the third accident and her increased pain symptoms, previously transient psychological and cognitive symptoms including feelings of sadness or depression, irritability, anxiety, low energy and difficulties with concentration intensified markedly, particularly after she returned to work in November 2013. Although her pain symptoms had lessened considerably by then, I accept they worsened during the course of the work day, disrupting her sleep. I have no doubt the plaintiff was discouraged by the experience of working with ongoing pain and fatigue, particularly given the demands of her job as a pharmacy assistant, namely the need for accuracy. Although, I accept the plaintiff worked as much as she could, I do not accept that her pain symptoms were severe. Severe pain is inconsistent with her evidence that she worked 32 to 34 hours per week. In fact she worked more than that, except for the months in 2016 leading up to trial in August. Her employment records for 2014 indicate she rarely worked less than 35 hours per week and most often between 35 and 39 hours, not 32 to 34. I infer from the amount she actually worked that her symptoms were not as intense or as disabling as she suggested.

·       I accept the plaintiff’s testimony that she attended the emergency department and received an injection in June 2014 because of increased pain, but conclude the flare up was relatively brief given her hours of work were reduced for a two-week period only. She attended the Change Pain Clinic in the fall of 2014 and declined the proposed injection series because she had less pain by then. I find her pain symptoms at that point were mostly mild and sometimes moderate. At the same time her psychological symptoms had subsided due to Pristiq allowing the plaintiff to cope more effectively.

·       By 2015 or early 2016, the plaintiff’s sleep was less disrupted and she was no longer taking over the counter pain medication as frequently, indicating her pain symptoms had become intermittent although ongoing.

[143]     After each of the three accidents, the first and third in particular, Mrs. Dhillon endured significant pain symptoms and headaches. Following the first and third accidents, her pain symptoms were severe enough to prevent her from working at all for some months. Her sleep was very disrupted. Since her return to work in November 2013, Mrs. Dhillon has continued to experience variable levels of pain in her neck, shoulders, upper and lower back and psychological and cognitive symptoms, all of which have improved and are likely intermittent, but now chronic. Ongoing pain has affected Mrs. Dhillon’s intimate relationship with her husband. She has also been somewhat less able to play badminton with her children and she avoids more elaborate cooking, something she loved to do before the accidents. Mrs. Dhillon has and will continue to experience some pain while working although not to the extent she claims. Mrs. Dhillon’s mood symptoms are reasonably well managed, although she continues to have low moments and feelings of anxiety in response to pain and fatigue. On the whole, however, the plaintiff is able to enjoy her family and everyday life and take pride in her work.

[144]     Applying the factors identified in Stapley to the facts of this case and bearing in mind my review of the authorities provided by the parties, I conclude an award of $85,000 is fair and reasonable.


“Meagre” Plaintiff Income Keeps Court From Awarding Costs to Successful Defendant

March 15th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.

In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages.  The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result.  At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries.  Prior to trial ICBC offered to settle the case for $150,000.

The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself.  In the end the court ordered that each party bear their own costs of the trial.  In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.

In reaching this decision Mr. Justice Affleck provided the following reasons:

[12]        The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.

[13]        The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.

[14]        When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.

[15]        The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.

[16]        My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.


Pub Found Partly At Fault for Crash Caused by “Visibly Intoxicated” Patron

March 9th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a Pub jointly and severally liable for a collision by a patron who was served alcohol to the point of visible intoxication.

In today’s case (Widdows v. Rockwell) the Defendant drove a vehicle and collided with the Plaintiff pedestrian.  The crash caused severe injuries, including brain damage.

At the time the Defendant was “quite literally, falling-down drunk.“.

Prior to the crash the Defendant was drinking at a local pub. In finding the pub jointly and severally liable for over serving a patron and failing to take reasonable steps to ensure he was not driving Mr. Justice Kent provided the following reasons:

[58]         Insofar as Rockwell’s consumption is concerned, I do not accept his evidence that he only consumed 2 1/2 beers at the pub.  Rather, I find as a fact that each of the co-workers bought at least one round of drinks for the other members of the group (and possibly more) and that Rockwell himself bought at least two rounds that included beer (for himself and Sauve), vodka (for Sahanovitch) and Fireball whiskey shooters (for all).  I find as a fact that by the time he left the pub to retrieve his truck, Rockwell had consumed at least five to six drinks, a combination of beer and liquor, and that he was significantly intoxicated by alcohol.  I also have no doubt, and I find as a fact, that the influence of alcohol on Rockwell was exacerbated by both a lack of food in the preceding 12 to 15 hours (and probably longer), and a high level of fatigue caused by extremely long work hours and inadequate sleep over an extended period of time.  His ability to drive safely was significantly impaired when he left the pub.

[59]         I recognize another possible theory of Rockwell’s intoxication is that he drank only two to three beers at the pub and in the two-hour period thereafter, he consumed substantial quantities of beer and/or liquor, whether at home or elsewhere, before the accident occurred.  While it certainly appears that Sahanovitch was an aggressive and irresponsible drinker of a sort who might engage in such behaviour, there is no evidence to support such a characterization of Rockwell.  When one subtracts the amount of time that it would have taken for Rockwell to drive home, this theory would require him to have consumed an enormous amount of alcohol in less than an hour, a proposition which is not consistent with his previous conduct and which, assessed from the perspective of robust logic and common sense, amounts to nothing more than wishful thinking and unfounded speculation on the part of Cambie Malone’s.

[60]         I am also satisfied however, and find as a fact, that Rockwell did indeed consume further alcohol after he departed the pub.  On the balance of probabilities, I find that this occurred at his residence and included consumption of vodka or other liquor in quantities more than Rockwell claims in his evidence.

[61]         It is not necessary to ascribe a precise figure to the amount of alcohol that Rockwell consumed after he left the pub.  It is sufficient to find that he was significantly intoxicated when he left the pub and that he became even more severely intoxicated through the consumption of additional alcohol before the accident happened…

[73]         In this particular case the affidavits from the pub employees all referred to the employees having successfully completed the “Serving It Right”, which is British Columbia’s mandatory “Responsible Beverage Service Program”.  This is a program sponsored by the provincial government and the hospitality industry which offers information about intoxication, as well as guidelines and suggestions for, as the tagline suggests, “responsible beverage service”.  Rather cleverly, none of the employee affidavits expressly disclosed the information and conduct guidelines suggested in the “Serving It Right” program.  Instead, all that was proffered was what was said to be Cambie Malone’s written “Policies and Procedures” which included the following paragraph:

It is your responsibility to ensure patrons do not become intoxicated while in the establishment.  You must refuse entrance and/or service to any person who is apparently under the influence of alcohol or drugs.  Moreover, persons visibly under the influence of drugs or alcohol may not be permitted to remain in the establishment.  You must refuse the person service, have the person removed and see that they depart safely.  Intoxicated persons must NOT be permitted to drive.  It is your duty to ensure that a safe ride home is used.  This is a crucial responsibility of everyone in the alcohol service industry.

[74]         While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

·       ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;

·       ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;

·       ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);

·       inquire if the patron is driving and identify any “designated driver” for groups of patrons;

·       know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;

·       display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;

·       ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;

·       display posters advertising free ride-home services available in the neighbourhood; and

·       if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.

[75]         None of these things occurred in the present case.  Rather, the pub’s employees utterly failed in abiding by their own employer’s directive that “intoxicated persons (e.g., Rockwell) must not be permitted to drive”.  I have no hesitation in concluding that the employees, and therefore Cambie Malone’s, did not meet the requisite standard of care in the circumstances of this particular case and that their conduct was accordingly negligent.


$217,500 in Damages Ordered Following Suckerpunch Assault

March 8th, 2017

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering the payment of $217,500 in total damages after the Plaintiff was injured in an assault/battery.

In today’s case (Rycroft v. Rego) the Plaintiff alleged he was injured in an altercation with the Defendant.  Although the Court heard differing versions of events the Court concluded the Defendant through an “unexpected” punch to the Plaintiff which began a brief physical scuffle.

In finding the Defendant culpable for the assault and the injuries that arose Mr. Justice Williams made the following findings of fact:

[30]         Based on my examination of all of the evidence, my conclusions with respect to what occurred are as follows.

[31]         In order to investigate the reported damage caused to the bike park, shortly after returning home, the plaintiff entered the yard behind his residence. Immediately before the altercation, while Mr. Rycroft was walking at a moderate pace in the general direction of his own home, Mr. Rego, walking quite briskly, approached him.

[32]         I accept that the plaintiff said words to the effect of “you must be the dad; I do not want kids playing there anymore.”

[33]         I find that, at that point, the defendant struck the side of the plaintiff’s head. The version of events which most sensibly and logically explains the resulting bruise is that, when he was struck, Mr. Rycroft had his head turned to the right. The punch was of significant force and unexpected.

[34]         As a consequence of the blow, the plaintiff went down in a forward direction, ending up on his knees. He had his hands on the ground. The defendant immediately applied some type of headlock to Mr. Rycroft from behind.

[35]         The two men struggled, with Mr. Rego behind and above Mr. Rycroft. No significant blows were landed.

[36]         The physical engagement ended fairly quickly. The defendant let go of the plaintiff and moved away, and the plaintiff got to his feet.

[37]         The defendant said something to the effect of “do you want round two?” or “do you want some more?” The plaintiff responded in the affirmative, I expect probably more reflexively than seriously, but did nothing physically to further engage with the defendant. Instead, the plaintiff reached into his pocket, took out his phone, and called 911.

[38]         At that point, the defendant and his wife left and went home.

[39]         In the course of the altercation, the plaintiff sustained an injury to his left temple area, an injury which is depicted in the photo marked Exhibit 6. I find that bruise was caused by a blow from the defendant.

[40]         It is also reasonable to conclude that Mr. Rycroft sustained minor injuries to his arm, his elbow area, and his hand, likely from going to the ground.

[41]         Finally, I accept that the plaintiff incurred some injury to his knees, also resulting from going to the ground.


$40,000 Non-Pecuniary Assessment for Intermittent, Lingering Soft Tissue Injuries

March 7th, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for lingering intermittent soft tissue injuries.

In today’s case (Erwin v. Buhler) the Plaintiff was involved in a 2011 rear end collision that the Defendant was responsible for.  The Plaintiff alleged that he suffered from bursitis in his hip due to the crash but the Court found this condition was most likely caused by other factors.  The Court did find the Plaintiff suffered various soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.

In assessing non-pecuniary damages at $40,000 Mr. Justice Armstrong provided the following reasons:

[117]     I am, however, satisfied that the plaintiff suffered neck, low back and shoulder injuries as a result of the car accident. Notwithstanding Dr. McGraw’s assessment that the plaintiff no longer experiences headaches or neck pain, I find that he has in fact been troubled by these symptoms on an intermittent basis. His low back was really sore for about a month after which Dr. McGraw assumed the pain was resolved. I also accept that he has intermittent low back and neck pain.

[122]     I have concluded from all of the evidence that the plaintiff suffered neck, shoulder and low back injuries at the time of the accident. Although the symptoms seem to have mostly resolved within one year of the accident, he has continued to experience intermittent back, neck and shoulder problems related to activity.

[123]     It is difficult to discriminate between the impacts on the plaintiff’s life arising from the trochanter bursitis and the other soft tissue injuries he suffered. Nonetheless, I accept that he is at an age where the severity and duration of ongoing pain, albeit intermittent, is troublesome for him. His compensable injuries co-exist with his non-compensable injuries. I am satisfied that the demands of his work elevate his trochanter bursitis symptoms but also his neck and back symptoms. It is hard to estimate whether he will eventually become asymptomatic in his neck and back areas but I find that they will continue to impact his life in the near future. The defendant need not compensate the plaintiff for his hip complaints but, his overall quality of life seems to be affected by the compensable injuries on an intermittent but troublesome basis for him.

[124]     The cases cited by the plaintiff did not provide much assistance in assessing the plaintiff’s non-pecuniary damages. In my view, the circumstances described in Stein are most helpful to my assessment of the plaintiff’s claim in this case.

[125]     Overall, I am satisfied that the plaintiff is entitled to non-pecuniary damages of $40,000.