ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the Court’s power to order a damage advance to a Plaintiff as a term of an adjournment order.

In last week’s case (Wood Atkinson v. Murphy) the Plaintiff suffered bilateral wrist fractures in a 2006 collision.  The Defendant admitted full fault for the crash.  The matter was set for trial but ultimately had to be adjourned due to difficulties in obtaining the Plaintiff’s employment records.  As a term of adjournment the Court ordered that the Defendant pay the Plaintiff a $50,000 advance.  In doing so Associate Chief Justice MacKenzie provided the following reasons:

[42] Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed the jurisdiction of this Court to order advance payments on damages under former Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The advance must be just in all of the circumstances, and the judge making the order must be completely satisfied that there is no possibility the final assessment of damages would be less than the amount of the advance payments. There is no requirement that the cause of the adjournment be the fault of one party, see Serban, at paras. 9-11.

[43] Further guidance is found in the following excerpt from Master Barber’s decision in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:

With liability not being in issue, the plaintiff should be put in funds at the earliest possible time. That is a reasonable thing for the plaintiff to ask for. The only thing that is stopping her from getting this money is not a determination of whether she is entitled to it, but as to how much. When it has been conceded that the sum of $20,000 is probably going to be less than or at least one-half of what the future amount she will obtain of $40,000 plus is, I can see no reason not to give her at least $20,000 at this time. To keep her out of pocket means that, especially when need is shown, as it has been in her affidavit, would be a refusal of justice.

[44] In this case, liability has been admitted, and it will be almost seven years from the date of the accident to the conclusion of the trial. The plaintiff is employed, but has problems with chronic pain in her wrists. Counsel are in agreement that an advance is justified in these circumstances.  The remaining issue is the amount that would be just in the circumstances, ensuring that it not be in excess of the potential award for damages at trial.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

Tags: Adjournment Applications, Advance Payment Orders, Associate Chief Justice MacKenzie, bc injury law, Madam Justice MacKenzie, Rule 12, Rule 12-1, Rule 12-1(9), Rule 13, Rule 13-1, Rule 13-1(19), Wood Atkinson v. Murphy

This entry was posted on Thursday, January 5th, 2012 at 9:00 am and is filed under BCSC Civil Rule 12, BCSC Civil Rule 13, ICBC Wrist Injury Cases, Uncategorized. You can leave a response, or trackback from your own site.