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.

Posts Tagged ‘breach of insurance’

BC Court of Appeal Denies Severe Injury Claim Because Teenaged Plaintiff “Ought to Have Known” Vehicle Driven Without Consent

August 1st, 2017

Reasons for judgement were published today by the BC Court of Appeal denying a Plaintiff access to a pool of money intended to compensate people injured at the hands of uninsured motorists.

In the recent case (Schoenhalz v. ICBC) the Plaintiff, who was 17 at the time, was badly injured while riding as a passenger in a vehicle involved in a 2007 collision.  The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture.  The driver of the vehicle was found to be negligent and damages of $282,992 were assessed.

The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner.  Accordingly the lawsuit against the vehicle owner was dismissed.    The driver was 15 years of age at the time and did not have a license.  The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.

ICBC denied coverage to the Plaintiff and the current lawsuit was commenced.   As discussed several years ago, a Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”

A similar exclusion exists if a Plaintiff seeks to access their own Underinsured Motorist Protection coverage.  Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.

In finding ICBC was right to deny coverage the BC Court of Appeal noted as follows:

[44]         Having canvassed counsel on this line of cases and on the “adult activity” line most recently considered in Nespolon v. Alford (1998) 110 O.A.C. 108, lve. to app. dism’d.[1998] S.C.C.A. No. 452, I do not find it necessary to consider them further in this case. Both lines concern the law of negligence as applied to young persons – but this is not the context before us. As I read s. 91, this case is concerned only with whether a reasonable person in the plaintiff’s place ought to have known Ms. Reeves was driving without the owner’s consent. In my opinion, a reasonable person would (as the trial judge here acknowledged) have known this; and even if one took into account the plaintiff’s age and experience, the test would also be met. As Mr. Brown submits, the plaintiff, age 17, had a driver’s license and was aware Ms. Reeves was too young to be licensed and that the owner’s permission was needed to drive the Camaro.

[45]         The trial judge reasoned that while it would not be reasonable for an adult to assume that Luke “was able to give [the girls] Steven’s permission when he directed them to take the car”, it had been reasonable for an “incredibly young” 17-year-old girl to have believed he would. With respect, it seems to me that the trial judge here erred in applying a largely subjective standard in the face of statutory wording that has long connoted a well-understood objective standard. With respect, a reasonable person “ought to have known”, and indeed would have known, that neither Steven Hammond nor his mother was consenting to the Camaro being driven by an unlicensed 15-year-old. I agree with counsel for ICBC that as a matter of public policy, there is no rationale for holding the plaintiff to a lower standard in relation to her decision to become the passenger of Ms. Reeves.

[46]         In my opinion, if Ms. Schoenhalz did not “know” that the car was being driven without the owner’s consent, she “ought to have known” that this was the case. I would allow the appeal and set aside the order granted by the trial judge in this proceeding.

 


212,000 Reasons not to Drive Drunk

May 23rd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, illustrating the potentially steep financial consequences of impaired driving.

In today’s case (Hamman v. ICBC) the Plaintiff was involved in a rear end crash.  He was the offending motorist.  He was insured by ICBC but was denied coverage for the crash due to allegations of impaired driving.  An occupant in the faultless vehicle was injured and ICBC ultimately settled the claim for $212,000.

ICBC then sought repayment from the Plaintiff.  The Plaintiff sued ICBC arguing they should not have denied coverage.  Mr. Justice Kent disagreed and ordered the plaintiff pay back ICBC the full amount, plus interest and court costs.  In upholding the breach of insurance the Court provided the following reasons:

[64]         I have no hesitation in concluding that Mr. Hamman was severely impaired by alcohol at the time of the accident.  His explanation of his activities that day and the amount of alcohol he had consumed is confused and unconvincing.  At the scene of the accident he appeared “out of it”.  He smelled of alcohol and he displayed significant comprehension difficulties.  He failed the roadside alcohol screening test.

[65]         It was a relatively clear night and the road surface was dry.  The highway was relatively straight.  The construction zone was illuminated by lights and a flashing arrow merger sign.  There was nothing to diminish the visibility of either the construction zone or the numerous vehicles that had come to a stop before it without incident.

[66]         At the police station he was noted to have slurred speech, flushed complexion, and blood-shot eyes.  He was falling asleep both in the police car and eventually at the police station itself.

[67]         And then, of course, there are the blood-alcohol readings obtained through the Data Master breath testing.  Those readings, .17% and .18% reflect substantial intoxication by alcohol.  They also put the lie to Mr. Hamman’s claim that he had only consumed a couple drinks on the evening in question.  That level of intoxication also explains Mr. Hamman’s difficulties with visual perception (depth and distance) and inability to first notice and then react to the otherwise clearly visible vehicles stopped on the highway ahead of him at the construction zone.

[68]         The evidence is overwhelming, and I have no hesitation in finding as a fact, that at the time of the accident Mr. Hamman was driving his vehicle under the influence of alcohol to such an extent that he was incapable of its proper control.  In doing so he breached the terms and conditions of his insurance policies and his liability coverage for the accident was rightly denied by ICBC.

[69]         Mr. Hamman’s action is dismissed.  ICBC’s counterclaim is allowed and damages are awarded to ICBC against Mr. Hamman in the amount of $212,000 together with interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.


Uber RideSharing Can Lead To Uber Insurance Problems

October 7th, 2014

UBER Logo

Uber, a ride for hire app, is currently facing a legal showdown in Vancouver.  For those unfamiliar with Uber, the company’s app connects passengers with drivers who, for a fee, take them to their destination.  Uber takes a slice of the action.  The Uber business model is proving profitable for the company but disruptive for the taxi industry.  A debate revolves around the need for regulation vs reducing consumer prices caused by the artificial monopoly provided to taxi companies.

Without weighing in on the politics of this debate one real world problem exists with Uber given BC’s current legal landscape.  The threat of breach of insurance for drivers in the program.

If an Uber driver is involved in an at fault crash while carrying a paying passenger they may be in breach of their insurance coverage with ICBC.

Section 75 of BC’s Insurance (Vehicle) Act invalidates ICBC coverage where “the insured violates a term or condition” in relation to their plan of insurance.

Section 55 of the Regulations set out the applicable terms and conditions and among these are the following:

(a) the use declared in the application for insurance for the vehicle,

(b) a statement relating to the time during which, and the territories in which, the vehicle may be operated, and

(c) a statement relating to the kind of goods or number of passengers that may be carried in or on the vehicle.

So, let’s say a driver with ICBC insurance coverage for pleasure use of their vehicle decides to make a few extra bucks by participating in the Uber program.  If he or she is involved in an at fault collision while ‘on the clock’ ICBC could likely use the above legal framework to declare them in breach of their coverage.  This means that ICBC would come after the driver for repayment of all insurance claims made following a crash.

Uber’s disruptive technology is welcomed by many and opposed by others.  Whatever the ultimate political outcome, it is clear that if a driver does not have properly declared insurance coverage they can face steep financial fallout if ever involved in a collision.   Any potential gaps in coverage is a problem which must be solved for a company like Uber to successfully operate in BC.


A Judicial Warning: Saving a "Modest Amount" in Insurance Premiums Can Create "Dire Financial Consequences"

August 17th, 2012

I’ve previously discussed how saving a few hundred bucks could cost you a few hundred thousand by misrepresenting the principle vehicle operator when purchasing ICBC insurance.  Today reasons for judgement were released by the BC Supreme Court, New Westminster Registry, demonstrating breach of insurance consequences in action.

In today’s case (Lau v. ICBC) the Plaintiff was involved in a 2009 collision.  At the time he was driving a two month old Subaru Impreza which was purchased for $41,287.  The collision resulted in the vehicle being a total loss.

ICBC found the Plaintiff fully liable for the collision although the Plaintiff was disputing this finding.  ICBC further denied coverage to the Plaintiff (meaning for starters they would not pay to replace the vehicle nor indemnify the Plaintiff for any claims brought by the occupants in the other vehicle) arguing that the vehicle owner made a ‘willfully false statement’ when the vehicle was purchased by not accurately declaring who the principle operator was going to be.

Mr. Justice Verhoeven agreed that the vehicle owner “knowingly misrepresented the identity of the vehicle’s intended principle operator” and therefore that the insurance coverage was forfeited.  The Court provided the following valuable comments:

[5] For the reasons that follow, I conclude with considerable reluctance that Yu Jung Lau knowingly misrepresented the identity of the vehicle’s intended principal operator when he applied for the insurance, and therefore the insurance coverage was forfeited.

[6] The reason I reach the conclusion I do with reluctance is that in my view, the misrepresentation was made in order to save a relatively modest amount of insurance premium, and almost certainly without any real appreciation that forfeiture of the insurance could result, with dire financial consequences. The result is harsh for the plaintiffs.

[7] However, ICBC does not have to prove that the plaintiffs were aware of the consequences of a misrepresentation concerning the insurance.  A contract of insurance is one of utmost good faith, and one cannot commit frauds or make wilfully false statements about the subject-matter of the claim without risking the loss of the right to indemnity: Inland Kenworth Ltd. v. Commonwealth Insurance Company (1990), 48 B.C.L.R. (2d) 305 (C.A.) at 310.

[8] Judging by the number of similar cases that have come before the courts, it seems likely the plaintiffs’ lack of understanding of the consequences of a false declaration as to the vehicle’s intended principal operator is shared with many members of the public. The result in this case should serve as a warning.


ICBC 'Third Party' Settlement Ends Tort Litigation Despite Defendant Protests

June 25th, 2012

When a motorist is in breach of their insurance ICBC has the right to intervene in a lawsuit against them and settle any tort claims arising from a collision pursuant to the powers given to them under sections 76 and 77 of the Insurance (Vehicle) Act.  ICBC is further given the power to recover the amount of the settlement from the breached motorist provided the settlement was entered into in good faith and further that appropriate notice is given to the breached motorist.  This remedy is available to ICBC even where the ‘breached’ motorist disputes fault for the collision as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Nanaimo Registry.

In last week’s case (Chandler v. Gomez) the plaintiff was injured in a collision and sued the defendant for damages.  The defendant was insured with ICBC but the insurer alleged the defendant was in breach of their coverage. ICBC joined the lawsuit as a statutory Third Party and eventually settled the plaintiff’s claim for $112,000.  ICBC sought recovery of this amount from the defendant.  The defendant argued that she was not at fault for the crash and the tort matter should proceed to trial on that issue.  Mr. Justice Greyell disagreed and found that the tort claim was concluded with the settlement despite the defendant’s protests. In doing so the Court provided the following reasons:

[14] Section 21(6) of the Act (s. 77(2) of the new Act) provides that ICBC has the right to recover any amount paid under or by way of a settlement or other payment, and I refer to this section which provides that:

. . . if the corporation has paid an amount to a person under this section, by way of settlement or otherwise, that it would not otherwise be liable to pay, and has personally delivered or forwarded by registered mail to the last known address of the insured a demand for reimbursement of that amount, the insured is liable to reimburse the corporation that amount, and the corporation may enforce the right [of] action in court.

[15] Accordingly, s. 21 provides ICBC with the right to defend the action, to settle the action, and to recover any amount paid under that settlement from an insured.  In essence, ICBC stands in the place of such defendant when it makes itself a third party to the action, as it has in this case, under s. 21.

[16] The necessary result of a combined reading of ss. 21(2), (6), (7), and (8) is that, upon settlement, the tort action has been concluded.  ICBC has acted pursuant to its statutory authority as insurer to settle the action.

[17] As stated by Madam Justice Gray in Insurance Corp. of British Columbia v. Schmidt, 2004 BCSC 1786, a case which raises similar issues to those present in this case:

[22]      ICBC’s third party notice is an unusual form of pleading.  It does not purport to make a claim against Mr. Schmidt.  Instead, it denies liability for indemnity and claims the right to defend the action as well.  It does not constitute a claim by ICBC for payment from Mr. Schmidt.

[23]      In fact, no claim against Mr. Schmidt under s. 21(6) could have arisen at the time of the third party notice.  Such a claim can arise only after payment and after delivery of the demand for reimbursement as required.

[24]      The issues in this litigation, a form of lawsuit sometimes termed a “recovery lawsuit,” are whether ICBC has met the terms of the statute giving it a right to recover, and whether the settlement was reasonable and effected by the insurer in good faith.  See the discussion of the respective issues in ICBC v. Doyle, [1984] B.C.J. No. 889, a decision of Judge Boyle when he was a County Court judge.

[26]      Bearing in mind this articulation of the issues in any recovery action, the issue before me is whether ICBC’s settlement was reasonable and made in good faith.  If ICBC had paid money to Mr. Neumann following the entry of a dismissal order, it is likely that any payment by ICBC would have been unreasonable.  But I must judge the reasonableness of ICBC’s conduct at the time that settlement was achieved.  At that time, the consent dismissal order had not been made.

[33]      While s. 21(2) permits ICBC to compromise or settle the claim at any stage, Mr. Straith argued that once ICBC becomes a third party in a tort lawsuit, the issues between ICBC and the driver over liability ought to be resolved in that lawsuit.  Mr. Straith suggested that if ICBC wanted to be able to proceed against Mr. Schmidt, ICBC ought to have reserved its rights, or proceeded to trial, or obtained an assignment from Mr. Neumann of his claim against Mr. Schmidt, or compromised with a judgment against Mr. Neumann and obtained an assignment of that judgment.

[34]      There is nothing in s. 21 which restricts ICBC to proceed under only one of the subsections, or requiring it to proceed as suggested by Mr. Straith.  Section 21(6) and the case law provide adequate protection for a driver who is denied indemnity by ICBC.  Any compromise ICBC enters into can be recovered from the driver only if the settlement were reasonable and entered into in good faith.

[18] The decision of Madam Justice Gray sets out a clear distinction between the tort action or the issues in the tort action which are between plaintiff and defendants, and ICBC pays out funds pursuant to s. 21.

[19] The lis between the parties in the tort action has been resolved by way of the settlement.  Whether the settlement was reasonable and whether it was effected in good faith is not a subject matter for determination in this case.  That issue must be determined when ICBC seeks to recover the amount it has paid by way of settlement.  The issue as stated is then between ICBC and Ms. Gomez as to whether that settlement was effected reasonably in all the circumstances of the case…

[22] I accept counsel for ICBC’s interpretation of the issue remaining to be determined between the third party ICBC and the defendant Ms. Gomez.  The forum for determination of that issue is in what is commonly referred to as a recovery action by ICBC.  It is not in these proceedings.


ICBC Ordered to Pay $75,000 Punitive Damages for "Bad Faith" Breach of Insurance

February 27th, 2012

I have previously detailed the potentially high financial consequences for civil breach of insurance.   One way a motorist can be in breach relates to intoxication.  If as a result of intoxication an individual is “incapable of proper control of the vehicle” then the motorist can be in breach of their insurance pursuant to Section 55(8)(a) of BC’s Insurance (Vehicle) Regulation.  This means that the individual can lose all insurance coverage and be forced to pay all damages flowing from a collision.

This is a severe consequence and in appropriate circumstances a very deserving one.  However, if ICBC is too quick to breach someone from their coverage they may be forced to pay damages in bad faith.  Such a result was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (McDonald v. ICBC) the Plaintiff was involved in a 2007 collision.  She was at fault for the crash.  She consumed two to three glasses of wine prior to operating a vehicle.  As she was driving she “turned the wrong way into an oncoming van” causing a collision and injuries to the other motorist.

The Plaintiff was issued a 24 hour roadside suspension and charged criminally with dangerous driving and alcohol related offences.  Eventually the criminal charges were dropped and the Plaintiff plead guilty to careless driving pursuant to section 144 of BC’s Motor Vehicle Act.

The injured van driver brought a claim against the Plaintiff.  ICBC eventually settled the claim for just over $182,000.  ICBC held the Plaintiff in breach of her insurance arguing the collision occurred as a result of impairment and sought to collect the money from her.

The Plaintiff disputed ICBC’s allegations.  She sued ICBC for a declaration that she is entitled to coverage and further for punitive damages.  Madam Justice Ballance sided with the Plaintiff.  The Court found that ICBC failed to prove that the collision occurred as a result of alcohol consumption and further ordered that ICBC pay the Plaintiff $75,000 for their ‘bad faith’ denial of coverage.  In reaching this result Madam Justice Ballance provided the following reasons:

[249] An insurer does not have to have an iron-clad case in order to deny coverage.  It is not expected to investigate a claim with the skill and forensic proficiency of a detective.  Nor is it required to assess the collected information using the rigorous standards employed by a judge.  The duty of good faith does not impose a standard of absolute liability in respect of an insurer’s wrong decision.  The duty simply dictates that an insurer bring reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation, and the assessment of the collected information with respect to the coverage decision.  My criticisms of the calibre of Ms. Baadsvik’s investigation and the shortcomings of her ultimate assessment should not be interpreted as suggesting that each individual omission or failing is, of itself, necessarily a violation of good faith and fair dealing.  It is their cumulative effect that constitutes a breach of its duty of good faith.

[250] It is not possible to perform a fair and proper evaluation in the absence of a reasonably thorough underlying investigation.  The latter precludes achievement of the former.  And so it was, in the case at hand.  Here, that deficiency was compounded by the other failings of Ms. Baadsvik’s evaluation of whether the plaintiff had been Incapacitated…

[259] ICBC engaged in settlement negotiations and concluded a settlement binding the plaintiff without appointing legal counsel on her behalf, all the while investigating her potential breach of contract.  The plaintiff was never informed of the settlement discussions despite the fact that ICBC knew that the damages in the To Action were likely to be significant and that the plaintiff would potentially have to bear them personally.  Indeed, after Ms. Baadsvik’s final discussion with Constable Wood on April 1, she was essentially on the brink of deciding that the plaintiff was in breach and that ICBC would not be indemnifying her.  The nature and sequence of these events, all fully within ICBC’s control, was manifestly unfair.

[260] Ms. Baadsvik was asked whether, in making the decision that the plaintiff was in breach, any consideration was paid to the settlement of the To Action.  She gave the unsatisfactory answer that she understood she had to wait until that settlement was concluded before she could advise the plaintiff about the breach and tell her how much money was involved.

[261] In my opinion, ICBC’s multiple failings in the investigation, assessment and breach decision that I have outlined, and its misconduct in relation to the To Action, respectively, contravened the duty of fair dealing and good faith owed to the plaintiff…

[263] This is an exceptional case.  The nature of ICBC’s bad faith behaviour took different shapes throughout the time line.  The overall handling and evaluation of the claim was overwhelmingly inadequate.  ICBC also allowed its objectivity to be tainted by the fact that the claim indirectly involved the “very difficult” Mr. McDonald.  While I recognize that the tainting of impartiality was only slight, it was nonetheless real and improper.

[264] In my opinion, ICBC’s conduct was harsh, high-handed and oppressive as those concepts have been developed in the jurisprudence, and marked a significant departure from the Court’s sense of decency and fair play.  Some of the acts of bad faith were inadvertent and others were not and they persisted over a considerable period.  The plaintiff was in a vulnerable position and suffered harm in consequence of ICBC’s misconduct, not all of which is tidily rectified by this Court confirming her right to be indemnified.  ICBC would not be accountable for its bad faith in the absence of an award of punitive damages, which it can well afford.  Such an award is justified to deter other insurers from engaging in similar types of misconduct, and to punish ICBC and condemn its breaches of duty…

[267] I declare that the plaintiff is entitled to indemnity from ICBC for all claims arising from the accident, including the To Action.

[268] I also award her the sum of $75,000 in punitive damages.


Motorcycle Learner Licences, the Supervision Requirement and Breach of Insurance

March 17th, 2011

Useful reasons for judgement were released this week by the BC Court of Appeal addressing the circumstances when a motorcycle learner will be held in breach of insurance for not being supervised by a qualified driver.

In today’s case (Hagen v. ICBC) the Plaintiff had a valid 6L learner’s licence.  One requirement of a learner’s motorcycle licence is for the learner to be supervised while riding by a fully licenced motorcyclist.  The Plaintiff was being supervised by his wife who had a valid motorcycle licence.   While riding in Vancouver in 2008 the Plaintiff was momentarily out of the view of his wife.  At this time he was struck by a truck making a u-turn and was seriously injured.

The Plaintiff applied to ICBC for no-fault benefits but ICBC refused to pay these arguing that the Plaintiff was in breach of his insurance for failing to comply with section 30.06 of the Motor Vehicle Act Regulations which read in part as follows:

Section 30.06 of the Motor Vehicle Act Regulations provides:

(4)        A person to whom a Class 6L licence is issued, … must not operate a motorcycle unless the person is under the direct supervision of another person who

(a) is at least 19 years of age, and

(b) holds a valid and subsisting driver’s licence, other than a learner’s licence … of a class that permits him or her to operate a motorcycle.

(5)        For the purposes of subsections (4) … direct supervision means that the person supervising can, at all times, see the other person while the other person is operating the motorcycle.

ICBC argued that “however momentary the separation of the vehicles may and consequent loss of sight may be, such loss of sight…negates eligibility for Part 7 Benefits“.  The trial judge disagreed with ICBC and ordered them to pay the Plaintiff no-fault benefits finding that ICBC’s interpretation would impose “financially devastating consequences on a person as a result of events over which he or she had no control

ICBC appealed and failed.  In dismissing ICBC’s arguments the BC Court of Appeal provided the following useful reasons addressing the requirement of learner motorcyclists to be supervised:

[21]         One may ask whether it was intended that a learner motorcyclist would be in breach of the supervision requirement when, having arranged for supervision, the supervisor acted contrary to agreement and took another route? In my view the answer is no.

[22]         This discussion is akin to the discussion of “due diligence” urged upon us by the appellant in saying we need not concern ourselves with the “offence” consequences of the interpretation it advocates. It says Mr. Hagen could answer a charge of breaching the supervision requirement by saying that he demonstrated due diligence in his attempt to comply, and that his non-compliance was outside of his control. In other words, it says a charge of breaching s. 30.06(4) would be treated as a strict liability offence. If that is the case, why, then, should other consequences, perhaps more grave, adhere to Mr. Hagen in a civil context because his supervision failed in spite of his reasonable efforts to comply with the section?

[23]         Section 30.06(4) is directed entirely to the behaviour of the learner, and in my view s. 30.06(5), in articulating the requirement of observation at all times, must be read as focusing upon the behaviour for which the learner can be responsible. Taking this approach, s. 30.06 of the Regulations, read in context, requires the learner to take all reasonable steps to ensure he (or she) is being supervised in compliance with the Regulations. This requires the learner to arrange for supervision by a person who commits to keeping him in sight at all times, and requires the learner to refrain from driving where it is not reasonable for him (or her) to think such supervision is occurring. I readily acknowledge that there will be circumstances in which a supervisor who fails to follow may nullify the learner’s Part 7 benefits, as in a failure to keep sight of the learner for such a period of time or distance that the learner, acting reasonably, should have become aware the plan for supervision had been compromised. Thus there will be a factual question: did the learner take all reasonable steps to ensure he was being supervised? In this case that translates to the question: should the learner have been aware he was not in sight of the supervisor?

[24]         This is a case in which the supervisor, not the learner, made a mistake, a mistake which was so near in time and distance to the accident it was open to conclude Mr. Hagen could not be faulted for failing to detect his loss of supervision. The judge described the lack of supervision as momentary. He referred to evidence that Mr. Hagen had seen the supervisor behind him at the previous intersection. The judge considered the evidence of the street design and the evidence that the many stop signs had permitted some vehicles to fall in between Mr. Hagen and his supervisor. I consider it was open to him on the evidence to conclude that this was a case of loss of contact that did not put Mr. Hagen in breach of the Regulations.

[25]         It follows I would dismiss the appeal.


Over 36,000 Reasons for Learning Motorists to Drive With A Qualified Accompanying Passenger

December 7th, 2010

Reasons for judgement were released today demonstrating some of the real world consequences drivers with a learner’s licence could face if they are found to be in breach of their policy of insurance.

In today’s case (King v. ICBC) the Plaintiff was involved in a 2007 BC motor vehicle collision.  4 vehicles were involved in the crash.  The Plaintiff was insured with ICBC and they paid out over $36,000 with respect to the claims made from the crash.  At the time of the collision the Plaintiff had a Class 5L learners licence and was operating his vehicle “without a qualified accompanying passenger“.   As a result he was found in breach of his insurance.   He was found to be the at fault motorist and ICBC asked that he pay them back the over $36,000.

The Plaintiff sued ICBC arguing that he was not at fault and that he was not in breach of his insurance.  ICBC counterclaimed for $36,613.33.  Prior to trial ICBC made an offer to settle their claim against the Plaintiff for $33,000.  The Plaintiff declined this offer and proceeded to trial.  Ultimately Mr. Justice Pearlman found the plaintiff was the at fault motorist and that he was in breach of his policy of insurance.  He ordered that he pay back ICBC the funds they paid out with respect to the collision claims.

The Court went further and ordered that the Plaintiff pay ICBC double costs for failing to accept their pre trial offer.  In reaching this judgement Mr. Justice Pearlman provided the following reasons:

[30]         The plaintiff’s claim failed as a result of the court finding that neither his testimony, nor that of his witness, Ms. Gromova, was credible.  The court found that the plaintiff had wilfully made a false statement respecting Ms. Gromova’s presence in the vehicle at the time of the accident.

[31]          The over-riding principle is whether, if the Offer to Settle had been accepted, there would have been significant, or any savings in litigation costs to the parties or to the court: LeFler v. Anderson, 2008 BCSC 1563, at para. 18. Here, acceptance of the offer would have spared both parties the significant costs of a four day trial where the amount in dispute was, exclusive of court order interest, less than forty thousand dollars.

[32]         Taking all these factors into consideration, I conclude that an award of double costs should be made in this case, and is consistent with the objective of deterring unreasonable conduct in litigation.  I find that the plaintiff was entitled to a reasonable time to consider the defendant’s Offer to Settle, following its delivery on September 24, 2010.  Taking into account the disclosure of the will say statements of the defendant’s witnesses on September 29, and allowing Mr. King a reasonable time to consider his position, and the defendant’s Offer following the delivery of the will say statements, I find that the defendant is entitled to an award of double costs  commencing October 7, 2010.

RESULT

[33]         The defendant will recover its costs and disbursements of this action from its commencement until October 7, 2010.  Those costs will be at Scale B.

[34]         The defendant is entitled double costs commencing October 7, 2010 and to disbursements incurred after October 7, 2010.  Disbursements will be allowed in the amount incurred, rather than at a double rate.


$170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

June 28th, 2010

Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.

In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant.  The Defendant had just left a pub and had a blood alcohol level well over the legal limit.  the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.

As a result of this criminal conviction the Defendant was in breach of his ICBC insurance.  He defended the lawsuit personally and ICBC defended as a statutory third party.

The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him.   Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident.  Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption  of alcohol that his actions in so doing were not only negligent, but grossly negligent“.

The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash.  In reaching this conclusion Mr. Justice Davies reasoned as follows:

[70]        The question is whether Mr. Eggleston’s own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle’s brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.

[71]        In all of the circumstances I find, as did Kirkpatrick J. in Laface, that Mr. Watson’s conduct was so unforeseeable, and the risk of injury from Mr. Eggleston’s failure to take more care so unlikely that “it is simply not appropriate” to find that Mr. Eggleston was contributorily negligent.

[72]        If I am wrong in that conclusion, based upon the analysis and conclusions of Esson J.A. in Giuliani, I would assess Mr. Eggleston’s fault in failing to avoid the collision to be no more than 5%.

The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI).  In arriving at this figure the Court provided the following reasons:

[145]     After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr. Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June 9, 2009.

[146]     I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…

[157]     In addition to the mild traumatic brain injury that I find has been the primary cause of Mr. Eggleston’s past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr. Watson’s negligence caused the following physical injuries which Mr. Eggleston has suffered and from some of which continues to suffer:

1)        Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr. Travlos.

2)        A traumatic umbilical hernia which was successfully operated upon on May 29, 2007.

3)        Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December 5, 2007, and which in the opinion of Dr. Leith, require further surgery.

4)        Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr. Palfi and in respect of which I accept Dr. Leith’s opinion of June 2, 2009.

[158]     In addition to those specific physical injuries, I accept the evidence of Dr. Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr. Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr. Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.

[159]     In determining the appropriate award to compensate Mr. Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr. Watson’s negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.

[160]     I have also considered the pain Mr. Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.

[161]     In addition, I have considered the situation that has existed since March of 2008 when Mr. Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.

[162]     Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr. Eggleston but which are of course dependent on their unique fact situations.

[163]     I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr. Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr. Watson’s negligence.


More on ICBC Injury Claims and the "Implied Undertaking of Confidentiality"

March 29th, 2010

As I’ve previously written, when a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.

In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a law known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order.  Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, dealing with this area of the law.

In today’s case (ICBC v. Titanich) the Defendant was involved in a motor vehicle accident and apparently injured another party named Swan.  Swan sued the Defendant.  ICBC apparently held that the Defendant was in breach of his policy of insurance and defended the lawsuit as a ‘statutory third party‘.  ICBC obtained a Court Order for disclosure of the RCMP records relating to the accident and then settled the Plaintiff’s personal injury lawsuit for some $346,000.  ICBC then sued the Defendant to recover the $346,000 on the basis that they alleged he was in breach of his insurance.

ICBC apparently relied on some of the information obtained in the RCMP files to base their decision to pursue the Defendant for repayment of the $346,000.  The Defendant brought a motion to dismiss the lawsuit arguing that ICBC “breached its implied undertaking of confidentiality in relation to the documents it obtained from the RCMP“:.

The Court ultimately dismissed the motion holding that while ICBC did indeed breach their implied undertaking, no remedy was necessary since ICBC would be granted judicial permission to use the RCMP records in the current lawsuit had they brought a motion seeking such an order.  In reaching this conclusion Mr. Justice Barrow summarized and applied the law of the “implied undertaking” as follows:

[13]        In Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8, Binnie J. addressed the scope of the implied undertaking and its underlying rationale. At para. 4, he wrote:

[4]        Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges.

[Emphasis in the original]

[14]        The rationale for the rule is, in part, to promote complete and candid oral and documentary discovery which, in turn, advances the orderly and effective administration of justice. It does that by providing the litigant making discovery with some confidence that the material produced will be used only for the purpose of securing justice in that proceeding.

[15]        Given this rationale, it is worthy of note that the discovery in issue in the matter at hand did not emanate from a party to the litigation. It does not consist of either oral or documentary discovery produced by Mr. Spinks. It is, rather, information gathered by the police in a process entirely independent of this litigation. I note this not because it necessarily follows that documents produced by third parties are not subject to the implied undertaking but rather because it is a factor that may be taken into account in determining whether a remedy ought to be granted…

[17]        The next issue is whether the plaintiff has used the discovery. The “use” that the plaintiff has made of the information is limited to listing those documents in a list of documents. That constitutes “use” within the meaning of the rule (Chonn v. DCFS Canada Corp. dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at paras. 47?52).

[18]        Assuming that the undertaking extends to documents produced by third parties to earlier litigation but relating to the conduct or affairs of a party to that litigation, I am satisfied that the plaintiff breached the implied undertaking.

[19]        In Juman, Binnie J. wrote this about the range of available remedies for breach of the implied undertaking:

[29]      Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court…

Further, it may be that the breach can be remedied by precluding the party in breach from using the evidence in question. That was the remedy applied in Edgeworth Construction Ltd. v. Thurber Consultants Ltd., 2000 BCCA 453, 78 B.C.L.R. (3d) 200.

[20]        Another possible remedy, and the one sought in Chonn is removal of counsel of record for the party in breach…Voith J. concluded that the defendant was in breach of the implied undertaking but declined to grant a remedy. In doing so, he made four points. First, he noted that the documents were relevant. Second, he observed that had the defendant applied to obtain the court’s leave to make use of the documents, leave would have been granted. Third, he noted that although counsel ought to have made an application, his error was not, in all the circumstances, serious. Finally, and largely as a result of the above, there was no prejudice to the plaintiff. As a result, he ordered that the plaintiff produce the documents and that the defendants were at liberty to use them.

[21]        The same four observations apply in the case at bar. The documents are relevant. The outcome of an application to be relieved of the implied undertaking, had it been made, is predictable. Binnie J. commented on the manner in which a court’s discretion might be exercised when faced with such an application. At para. 35, he wrote:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted…

The example posited is this case. Next counsel’s conduct in this case is, if anything, less serious than that in Chonn. As in Chonn, plaintiff’s counsel in the present case raised the issue of the implied undertaking in his first conversation with Mr. Titanich’s lawyer. In doing so, he noted that he was of the view that he required the consent of the plaintiff in the previous action before disclosing the documents. He did not suggest that he needed Mr. Titanich’s consent presumably because Mr. Titanich was not a party of record in the earlier action. Mr. Titanich’s counsel did not suggest otherwise. She simply asked that the documents be forwarded to her. The understanding that Mr. Spinks had from the conversation with Ms. Roy was that they would each list the documents and that all he needed to do was obtain the consent of the plaintiff in the previous action. He obtained that consent and listed the documents.

[22]        Although for the reasons indicated, I think Mr. Spinks was required to obtain the consent of Mr. Titanich, in concluding otherwise, he was not acting in a cavalier manner but was rather proceeding carefully and on the basis of an analysis that appeared to have been shared Mr. Titanich’s own lawyer.

[23]        In all of these circumstances, there is, in my judgment, no need for any remedy.

While ICBC was not penalized for breaching the implied undertaking this case serves as a reminder that lawyers must respect the limits the law imposes on the use of documents which come within their possession through the compelled disclosure of the BC Rules of Court.  Failing to heed these restrictions can result in severe consequences as outlined in today’s case including removal from the case, exclusion of evidence or even dismissal of a lawsuit or a defence