ICBC Law

As the BC Court of Appeal recently confirmed, there is a range of possible splits of fault following many intersection collisions.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this frequent type of collision.

In last week’s case (Ziani v. Thede) the Plaintiff was involved in a 2006 accident in Vancouver, BC.  He was travelling west on Kingsway.  As he approached the intersection of Boundary Road the light turned yellow.  He increased his speed to run the light.  At the same time the Defendant was approaching from the opposite direction on Kingsway making a left hand turn onto Boundary.  The Defendant testified that he had an advance green arrow although this evidence was not accepted with the Court finding that the Defendant was faced with the same yellow light that the Plaintiff had.

Madam Justice Bruce found that both motorists were equally to blame and in doing so provided the following reasons for judgement:

[24] On the facts of this case, the plaintiff entered the intersection on a yellow light and thus cannot be said to have the right of way. I am also satisfied that the defendant did not have an advance green light in his favour when he was attempting to turn left. Given the timing of the light sequences, and the evidence of the two independent witnesses, it would have been impossible for the defendant to have faced a green light when he was attempting to turn left. Had the defendant faced an advance green turn signal, the witnesses would not have seen a red light for oncoming east/west traffic at the time of the collision. Next in the sequence would have been a green light for through traffic on Kingsway. Moreover, Ms. Gjerding clearly testified that the defendant’s blue van was stopped in the left turn lane waiting for the through traffic to clear. This evidence is inconsistent with the defendant having the right of way with an advance green light.

[25] Thus on the facts of this case, the competing duties described in ss. 174 and 128 of the Motor Vehicle Act are squarely in issue. The burden of proof described in Dawes is not applicable where neither of the drivers had a presumptive right of way. Instead, the Court must examine the conduct of each driver to determine if they complied with their respective duties under ss. 174 and 128 of the Motor Vehicle Act…

[27] In my view, it is apparent that the plaintiff decided to increase his speed and “run” the yellow light in contravention of s. 128 of the Motor Vehicle Act in order to avoid the red light. It was only coincidental with the light turning yellow that he saw the defendant’s vehicle. It was not the presence of the defendant’s vehicle that led to the plaintiff’s decision to increase his speed in order to avoid a collision…

[29] In this case, however, I find the defendant did not assess whether the plaintiff was an immediate hazard or not when deciding to proceed with the left turn. Instead, the defendant wrongly assumed that he had the right of way due to the presence of an advance green signal. Instead of focusing on the oncoming traffic and any potential hazards created by those drivers, the defendant concentrated on ensuring there was no cross traffic or pedestrians in the crosswalk while he turned left. He looked left, then right, then left again before he looked ahead at oncoming traffic. By this time it was too late because the collision had already occurred. In my view, the defendant neglected to take the proper steps to ensure there was no oncoming traffic before he proceeded into the left turn. In this regard, I find the facts of this case are similar to those in Shirley where Mackenzie J. (as he then was) concluded that both drivers were at fault, the oncoming driver for running a yellow light and the left turning driver for proceeding into the turn when her view of the intersection and the oncoming traffic was partly blocked.

[30] For these reasons, I find that both the plaintiff and the defendant are at fault and their respective negligence both contributed to the accident. The degree of fault does not differ significantly. The defendant proceeded into a left turn without keeping a lookout for oncoming traffic due to his mistaken assumption that he had an advance green light. The plaintiff was equally at fault for increasing his speed and attempting to travel through the intersection before the light turned red and following an established amber. Accordingly, I find the plaintiff and the defendant each 50% responsible for the accident.

As frequently discussed, the Low Velocity Impact (LVI) defence has been criticized many times by the BC Supreme Court.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating yet again that the LVI defence is not a recognized legal principle.

In today’s case (Dolha v. Heft) the Plaintiff was involved 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered a “mild to moderate” whiplash injury which resolved in several months.  The Court awarded the Plaintiff $7,000 for non-pecuniary damages.  Prior to doing so the Court criticized the LVI Defence as having “no scientific justification“.  In assessing damages Madam Justice Bruce provided the following reasons:

[16] Based on the evidence led in this summary trial application, I find there is no reason to doubt the veracity of the plaintiff’s claims that she suffered pain in her neck and upper back, as well as headaches and dizziness, immediately following the accident and for a period of six to nine months thereafter. Moreover, there is no evidence to contradict Dr. Samaroo’s opinion that these symptoms arise from soft tissues injuries caused by the accident. There is no scientific justification for concluding that a low velocity collision is incapable of causing injuries. The minor nature of the collision is only one factor to consider when assessing the severity of the injuries suffered by the plaintiff. While the medical evidence before the court is primarily based on the subjective complaints of the plaintiff, there is no evidence that the plaintiff’s symptoms continued beyond what would normally be expected for these types of soft tissue injuries. Thus the caution expressed in Butler and Price is not relevant on the facts of this case….

[19] Turning to the factors relevant to the assessment of non-pecuniary loss, it is apparent that the injuries suffered by the plaintiff were of a minor nature. While she experienced pain and required medication to alleviate this symptom, the plaintiff had full range of motion in her back and her neck throughout her convalescence. In addition, the symptoms experienced by the plaintiff were not sufficiently severe that she required passive modalities such as physiotherapy, massage therapy or chiropractic manipulation. The plaintiff last saw her doctor for pain due to accident-related injuries in late November 2008, some five months after the collision. The plaintiff’s injuries resolved entirely after a relatively short period of six to nine months. The headaches persisted for about a year; however, they decreased in intensity and severity over time. The plaintiff has no residual effects from the injuries. Lastly, the plaintiff’s lifestyle was only moderately impacted by the injuries. She was unable to run for a couple of months.

[20] The plaintiff suffered some emotional anxiety as a result of the accident and had sleep difficulties. The sleep problem resolved quickly and the increased anxiety was modest in severity and did not persist over a lengthy period of time.

[21] Lastly, the plaintiff is a relatively young woman who does not suffer from any particular emotional or physical condition that rendered or could have rendered the injuries she suffered more disabling.

[22] Having regard to the range of non-pecuniary damages awarded in the cases cited by the parties, and the particular circumstances of the plaintiff, I find an award of $7,000 is appropriate.

One of the overarching changes in the current Suprene Court Rules is the introduction of the principle of ‘proportionality’.  When any applicaiton is brought before the Court the presiding Judge or Master must consider this concept in applying the Supreme Court Rules.  Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, discussing this in the context of a dismissal application.

In last week’s case (Ellis v. Wiebe) the Plaintiff sued various Defendants for alleged misrepresentation in the course of a purchase and sale agreement relating to property.   The lawsuit started in 2004 and by 2011 still had not been resolved.

The Defendant Wiebe brought an application to dismiss the lawsuit for want of prosecution (failure to prosecute in a timely fashion).  Madam Justice Bruce held that while the delay in the prosecution was inordenate and inexcusable there was no prejudice and did not dismiss the claim for this reason.  The Court did, however, go on to dismiss the claim on it’s merits.  Prior to doing so the Court made the following findings with respect to the application of the proporitonality principle in want of prosecution applications:

[8] The parties do not dispute the test to be applied by the court in determining whether an action should be dismissed for want of prosecution. The test is concisely summarized in Shields v. Nishin Kanko Investments Ltd., 2008 BCSC 36 at para. 25, wherein Mr. Justice Parrett cites the comments of Scarth J. at para. 3 of March v. Tam, 2002 BCSC 1125:

… I conclude that the principles of law which govern the exercise of the Court’s discretion in the circumstances of this case may in summary form be stated as follows: The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed.

[9] The authorities also consistently hold that the court must look to the objects of the Supreme Court Rules as these relate to the particular circumstances of the case to determine whether an action should be dismissed for want of prosecution….

[10] When the Supreme Court Rules were amended in July 2010, a new subsection was added to Rule 1-3 to further refine the meaning of “just, speedy and inexpensive determination”. Rule 1-3 (2) provides as follows:

(2)   Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)      the amount involved in the proceeding,

(b)      the importance of the issues in dispute, and

(c)      the complexity of the proceeding.

[11] In my view, Rule 1-3 (2), in part, reflects the approach adopted by our Court of Appeal to the issue of dismissal for inordinate delay; that is, the facts of each case have a significant impact on the outcome of any particular application for dismissal based on want of prosecution. While the principles of law are relatively straightforward, it is the application of these principles to widely varied fact situations that is critical. As noted in Rhyolite Resources Inc. v. CanQuest Resource Corp., 1999 BCCA 36, at para. 16:

Cases vary so infinitely that it is not always easy to apply to one factual situation the decision in another very different factual situation. However, it is the task of the court to seek to apply in a rational fashion the principles that have been laid down in the decided cases, always bearing in mind that the facts in each case are going to have a significant influence on the actual outcome of the individual application. I believe, with respect, that this approach or principle can be found well expressed in a case that was cited to us, Lebon Construction Ltd. v. Wiebe (1995), 10 B.C.L.R. (3d) 102 (C.A.), a recent decision of this court. That was a builder’s lien case and in that class of case, one would expect a swifter pace to the action than might be the case of say a personal injury case where a very serious injury and the course of recovery of a plaintiff must be assessed over time. Although it is always desirable to move on promptly with litigation, the simple fact is that in certain cases the interests of justice demand a rather more stately and measured pace than would be proper with regard to another class of action. Although it is desirable that all cases proceed with reasonable promptitude, the key word is reasonable and the ultimate consideration must always be: what are the interests of justice?

If a private contractor fails to clear ice, snow or other hazards on a roadway in British Columbia and this leads to a collision they can, depending on the circumstnaces, be sued for damages in negligence.  This topic was discussed in reasons for judgement released yesterday by the BC Supreme Court, Smithers Registry.

In yesterday’s case (Billabong Road & Bridge Maintenance Inc. v. Brook) the Plaintiff was involved in a single vehicle collision on Highway 16E near Smithers, BC.   She lost control of her vehicle on black-ice and left the roadway.  At the time the Defendant had the contract with the Provincial Government to maintain that stretch of highway.  They did not sand the road and the Plaintiff sued claiming they were at fault for the crash.  The Defendant argued that the Plaintiff drove carelessly and was solely to blame for the crash.

At trial the presiding Judge found both the Plaintiff and Defendant were at fault.  The road maintenance company appealed arguing that the Judge imposed an unfair standard on them.  The appeal was dismissed with the BC Supreme Court finding that the contractor did not respond appropriately to the known slippery conditions.  While the outcome of these cases are highly fact driven Madam Justice Bruce provided the following useful reasons discussing the law of road contractor liability in British Columbia:

[25]        Where the Province delegates responsibility for road maintenance to a private contractor, the contractor inherits the same Crown immunity for policy decisions, but continues to be liable under private law for negligence arising out of operational decisions. For example, where the contract with the Provincial Government specifies that particular road work must be completed within two hours of certain events, compliance with this standard is sufficient to clothe the contractor with immunity for any claim in negligence by a pedestrian or motorist. This is because the time frame for the completion of the work is a matter of policy set by the Provincial Government after balancing the costs associated with the work with the need to ensure the safety of the travelling public. As Meiklem J. says in Holbrook v. Argo Road Maintenance Inc., [1996] B.C.J. No. 1855 (S.C.) at paras. 27-28:

[27]      On the analysis prescribed by the majority of the Supreme Court of Canada in the Just and Brown cases, policy decisions of the Crown are not reviewable and in Brown it was expressly held that decisions as to the level of road maintenance are decisions of policy and cannot be reviewed on a private law standard of reasonableness. They are only reviewable if so irrational as not to be a proper exercise of discretion.

[28]      The application of these principles of course allows the government ministry to indirectly establish the upper limits of the standard of care that they are then held to in their operational functions. Thus the courts defer in a substantial way to the government ministry and the operational standard of care slides up and down the scale according to the level of road maintenance that is set as a matter of policy. Thus if a private law standard of reasonableness in a certain storm condition might suggest hourly patrols but policy has set the frequency of patrols at daily, the latter would prevail as the applicable standard in a negligence action against the Ministry.

[26]        On the other hand, where the negligence arises out of an operational decision, and is not based on a standard of care established as a matter of policy by the terms of the contract with the Provincial Government, a contractor must meet the private law standard. The Court of Appeal described this operational standard of care in Benoit v. Farrell Estate, 2004 BCCA 348 at para. 39:

[39]      The parties agree that Mainroad’s duty is coterminous with the Crown’s duty of care to users of public highways in respect of operational matters.  They agree that the decision whether to apply salt to Highway #4 was an operational decision and that the duty of Mainroad was to take reasonable care to prevent injury to users of the highway by icy conditions: Brown v. British Columbia, [1994] 1 S.C.R. 420 at 439.  The standard of care in respect of highway maintenance was more recently described in Housen v. Nikolaisen at para. 38, quoting from Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):

…the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety.  What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances….

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for an injury causing chronic shoulder impingement.

In today’s case (De Gaye v. Bhullar) the Plaintiff was involved in a 2005 collision in Surrey, BC.   The Defendant ran a red light and struck the Plaintiff’s vehicle with considerable force.  Fault for the crash was admitted.  The trial focussed on the value of the Plaintiff’s claim.

The Plaintiff sustained various injuries, the most serious of which was subacromial impingement to his left shoulder.

Madam Justice Bruce assessed non-pecuniary damages at $70,000 and in doing so made the following findings:

[87] While the expert medical opinions are unanimous that Mr. De Gaye also suffered a left shoulder injury during the accident when he struck the seatbelt harness, there is a dispute as to whether the muscle and ligament damage included thoracic outlet syndrome. Dr. Vaisler and Dr. Stewart-Patterson believe that Mr. De Gaye has a shoulder impingement that would be best managed by arthroscopic surgery followed by a three month recovery period with physiotherapy. Their clinical observations and physical examinations support this opinion. Dr. Vaisler and Dr. Stewart-Patterson also believe that the findings in the ultrasound report are consistent with a shoulder impingement and that this test corroborates their clinical observations. …

[89] On balance, I prefer the opinions of Dr. Stewart-Patterson and Dr. Vaisler. Their opinions are supported by physical tests and clinical observations over a combined period of almost three years between January 2007 and September 2009. While the cortisone injections have not relieved Mr. De Gaye’s pain, there is a significant failure rate in the accuracy of such injections and the ultrasound report suggests there is a mild shoulder impingement according to the opinions of Dr. Vaisler and Dr. Stewart-Patterson…

[92]         While it is apparent that Mr. De Gaye’s loss of enjoyment of life, physical pain, and emotional suffering has continued for over five years since the accident, it is undeniable that the symptoms have drastically improved since March 2005. The back and neck pain reoccur infrequently with extended use or exercise. The primary injury remains the shoulder impingement; however, there is an 80% chance that arthroscopic surgery will relieve the pain symptoms even with repetitive use. The migraine headaches remain problematic but controllable with prescription medication.

[93]         The cases cited by the parties are helpful because they show the range of possible damages for pain and suffering; however, each case must be decided on its own particular facts. In light of the length of time Mr. De Gaye has suffered from his injuries, the serious nature of those injuries and their significant impact on his recreational and work life, balanced against the improvements he has had over time and the high probability of successful surgery for his left shoulder, I find that an award of $70, 000 is appropriate in all the circumstances.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a produce vendor liable for injuries sustained when a shopper slipped and fell on a dropped grape.

In today’s case (Davis v. Kin’s Farm Market) the 75 year Plaintiff was shopping in Lynn Valley Mall in North Vancouver.  As he walked “past the fruit and vegetable display tables located outside of Kin’s Market, he slipped and fell on a green grape“.

The grape was just outside of Kin’s Market in an area that was “encroaching somewhat into the marbled tiles forming the mall pedestrian corridor“.   The Plaintiff sued the owner of the Mall and the produce store.

The Defendants argued that the Plaintiff was at fault for his injuries and that they were not responsible because they had a reasonable system to deal with hazards on the floor.  However, this was contradicted by a witness who gave evidence that “several hours after the ambulance took (the Plaintiff) away”  there were “more grapes on the marble tiles immediately outside the store”  and that after bringing these grapes to the attention to the employee in charge of Kin’s Market “this employee took no steps to clean up the grapes“.

Madam Justice Bruce went on to find both Defendants liable for the Plaintiff’s injuries.  Specifically the Court reasoned as follows:

[39] In addition to having no reasonable system of inspection and maintenance in place to address spills from the bins and display tables outside the store, I find that the employees were not complying with the standards set by their employer on the day of the accident. Ms. Janda’s evidence tends to show that the employees of Kin’s Market were lax in regard to the cleanliness of the areas surrounding the bins. While evidence of a failure to comply with the cleaning policies well prior to the date of the accident cannot be used to infer such a failure on the date of the accident, in this case there is evidence that just hours after Mr. Davis’ fall there were more grapes on the marble tiles adjacent to the bins displayed by Kin’s Market. This evidence suggests that the employees of Kin’s Market had rather poor powers of observation. Moreover, the fact that on two occasions on June 5, 2005, employees of Kin’s Market took no steps to clean up fallen grapes after the spills were brought to their attention strongly suggests that they took no responsibility for any produce that landed beyond the brick tiles.

[40] Lastly, Kin’s Market argues that even if it failed to meet the standard of care owed as an occupier, the fact that the Owner met this standard removes any responsibility they may have for the accident. I am unable to accept this argument. Where there are two occupiers of premises, each of them owes a duty of care to persons invited to enter the premises. The fact that the Owner may rebut a prima facie breach of the Act does not obviate the necessity for Kin’s Market to also satisfy the two pronged test articulated by the Court of Appeal inAtkins. Permitting grapes to remain on the floor as a hazard is negligent absent proof that a reasonable system of maintenance and inspection was in place and being followed on the day of the accident. Kin’s Market has failed to satisfy this onus and it is irrelevant whether the Owner has led evidence that shows it met the required standard of care.

The Court went on to find that the Plaintiff was not at fault for falling reasoning as follows:

[60] Kin’s Market argues that Mr. Davis had an obligation to keep a proper look out for his own safety and to be aware of his surroundings: Gervais v. Do, 2000 BCSC 1271, [2000] B.C.J. No. 1732. Kin’s Market points to Mr. Davis’ admission that his attention was not directed to where he was walking before he fell; rather, he was looking toward the Shoppers Drug Mart. He was familiar with the mall and could have avoided the fall had he been paying attention to the floor where he was walking…

[62] In my view, it is not reasonable to expect Mr. Davis to be staring at his feet as he walked through the mall towards the Shoppers Drug Mart. Had he positioned his head in a downward direction to detect possible hazards on the floor, Mr. Davis may have stepped over the grapes in his path; however, he may also have run into another mall patron possibly causing damage to himself and the other person. It is also understandable that Mr. Davis would not be cognizant of the risks associated with walking in the common area of the mall adjacent to Kin’s Market, particularly as he was three to four feet from the display tables. He was not inside the store where he may have been alerted to the possibility of produce that had fallen to the floor. Lastly, I find Mr. Davis’ circumstances are similar to that found by the Court of Appeal in Coulson. The tenants in the mall design their displays to attract customers’ eyes. They do not encourage patrons to keep their eyes on the floor ahead of their feet. As Bauman J. (as he then was) said in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, [2000] B.C.J. No. 1988 at para. 44:

[44]      As to the issue of contributory negligence, it has been said many times, most recently by Justice Burnyeat in Coleman v. Yen Hoy Ent. et al, 2000 BCSC 276 [In Chambers], that while there is a duty on the plaintiff to be aware of her surroundings, it is not the case that she is required to “glue her eyes to the ground.”

Further to my numerous posts discussing the development of Rule 37B, reasons for judgement were released today demonstrating that this Rule’s application is still being shaped by the BC Supreme Court.

The one factor that has yet to receive judicial agreement is whether the defendant being insured is a factor the Court can consider when exercising its discretion to award costs under the rule.  There are cases going both ways and today’s case shows that the debate goes on.

In today’s case (Wittich v. Bob) the Plaintiff was injured in a car crash.  Her husband was the at fault driver.  She sued for damages.  Before the trial the Defendant (through his insurer ICBC) made a formal offer to settle the case for $40,100.  Later the Defendant withdrew this offer and made a second formal under Rule 37B to settle the case for $65,000.  The Plaintiff rejected this offer, made her own formal offer of $196,000 and proceeded to trial.

At trial the Plaintiff sought damages of $847,000.  The claim was largely unsuccessful with the Court awarding just over $31,000 in damages.  (You can click here to read my summary of the trial judgement).

The Defence then brought a motion to be awarded costs and disbursements.  This application was partially successful with the Defendant being awarded their costs and disbursements from 6 weeks before trial through trial.  Before coming to this decision, however, Madam Justice Bruce was asked to consider whether the fact that the Defendant was insured with ICBC was a factor the court can consider when weighing the financial positions of the parties.  The Court ruled that this indeed is a relevant factor holding as follows:

[23]        Turning to the financial circumstances of the parties, it is clear that, as a married couple, the plaintiff and the defendant have the same economic position.  The authorities are divided as to whether the circumstances of the insurer should be considered as a relevant factor in an order for costs. In the particular circumstances of this case, I find it is appropriate to consider the insurer’s resources in comparison to the plaintiff’s. The defendant Mr. Wittich supported his wife’s claim and testified that her pain and suffering after the accident was considerable and prolonged; however, counsel for the defendant took an entirely different position in argument. Thus it must be inferred that counsel was taking instructions from the insurer and not the litigant.

[24]        The plaintiff is not a wealthy person. She has not worked for a considerable period of time. The defendant has an income of less than $70,000 per year. I thus find that their economic circumstances are far less substantial when compared to that of the insurer. It is also apparent that an award of costs may deprive the plaintiff of the judgment awarded at trial. These are factors in her favour.

Rule 37B has been on the books now for almost two years.  The Court is clearly conflicted about whether the availability of insurance is a relevant factor under the rule.  When the New BC Supreme Court Rules come into force on July 1, 2010 Rule 37B will be replaced with Rule 9.  Rule 9 uses language that is almost identical to Rule 37B so the lack of clarity will likely continue.  In light of the on-going conflicting authorities it will be useful if the BC Court of Appeal addresses this issue.

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, dealing with a very interesting set of facts.  Can a Defendant accept a Formal Settlement Offer from a Plaintiff when the Plaintiff forgot the offer was made in the first place?

In yesterday’s case (Burton v. Bakker) the Plaintiff was injured in a 2005 BC motor vehicle accident.  He hired a lawyer to help him advance his ICBC claim.  In the course of the lawsuit the Plaintiff’s lawyer made a formal settlement offer to resolve the claim for $40,000.  Some time after this the Plaintiff switched lawyers.  When the new lawyer took over the file “there was no copy of the settlement offer made (by the last lawyer) in the file and the correspondence accompanying the file made no reference to (the) offer“.

Almost one year passed.  During this time the potential value of the Plaintiff’s claim appreciated significantly.  The Plaintiff’s new lawyer continued to be unaware of the outstanding offer made by the first lawyer.  Then the Defendants lawyer, without any prior notice to the Plaintiff’s new lawyer, accepted the formal settlement offer.  The parties could not agree if there was a binding settlement which resulted in the Defendants applying to Court for “a declaration that there is a binding settlement agreement“.

Madam Justice Bruce of the BC Supreme Court presided over the application.   The Plaintiff’s lawyer argued that “the offer to settle was made under a misapprehension of the facts underlying the claim such that it would result in an injustice to enforce the settlement“.  Ultimately the Court held that this is an issue that would better be dealt with by the trial judge as opposed to in a pre-trial chambers application.  Before reaching this conclusion, however, Madam Justice Bruce provided a useful discussion of the powers of BC Courts to offer remedies in the enforcement of settlement agreements.  Here are the highlights of the Courts discussion:

[20] The enforcement of settlement agreements is not a separate field of law exempt from the ordinary principles of contract law and the rules of procedure. The various means of enforcing a settlement agreement may involve equitable principles, discretionary remedies, and rules regarding the entry of consent orders; however, this does not oust the general principles of contract law. This proposition of law is amply supported by the reasoning of the Court of Appeal in Robertson where Lambert J.A. says at 386:

The law in relation to the enforcement of settlement agreements by stays of proceedings brings together principles of contract law, principles of the law of agency as they apply to barristers and solicitors, rules of equity as they apply to discretionary remedies, and rules of procedure as they apply to the pronouncement and entry of consent orders. In each case, the issues between the parties must be dealt with in accordance with those principles. The effectiveness and the enforcement of settlement agreements does not constitute a separate field of law to which the ordinary principles of contract law, agency, and equity, and the ordinary rules of procedure, do not apply.

[21] It is because the enforcement of settlement agreements involves such a collage of legal and equitable principles that the remedies available to the court have become somewhat muddied. On the one hand, it is apparent that the Rules of Court and in particular, Rules 37A and 37B addressing settlement offers, are not a complete code that have ousted the principles of contract law in respect of the enforcement and interpretation of settlement agreements. As Madam Justice Ross says in Thom at paras. 33 to 34:

[33] In my view, the decision in Acadia Hotels did not have the effect contended by counsel for the respondent of completely ousting the principles of mistake from a consideration of Offers to Settle.

[34] I find support for this conclusion in Craig Estates and in Vickaryous v. Vickaryous (2001), 19 R.F.L. (5th) 195, [2001] B.C.J. No. 1343, 2001 BCSC 930 (S.C.) per Garson J. In both decisions, the principles applicable to unilateral mistake were applied in relation to the acceptance of an Offer to Settle. Moreover, in 256593 B.C. Ltd., Mr. Justice Donald approved of the statement of law made by Baker J. in the Craig Estate decision.

[22] Thus, on an application for a declaration that a settlement agreement is binding on the parties, the court may apply the ordinary principles of contract law to determine the matter and grant or dismiss the application based on these principles.

[23] On the other hand, in an application to enforce a settlement agreement, the court has a broader range of remedies available to it that in an ordinary contract case, particularly because of s. 8 of the Law and Equity Act. This provision authorizes the court to grant a stay of proceeding in any cause or matter before it if it is just and fit in all of the circumstances. Alternatively, the court may exercise its discretion to leave the issue of the settlement agreement to the trial judge. As Garson J. (as she then was) says in Vickaryous v. Vickaryous, 2001 BCSC 930, 19 R.F.L. (5th) 195 at paras. 28 to 29:

[28] This application is brought pursuant to Rules 1, 2, 18A, 27 and 57 of the Rules of Court and s. 8 of the Law and Equity Act.

[29] In an application such as this, the court may grant or dismiss the application to enforce a settlement, pursuant to Rule 18A. Alternatively, pursuant to s. 8 of the Law and Equity Act the court may exercise its discretion in favour of granting a stay of the proceedings pending completion of the settlement agreement. The court also has a discretion to leave the settlement issue to be resolved at trial. (English v. Storey, [1999] B.C.J. No. 1647 (B.C.S.C.) and Hawitt v. Campbell (1983), 148 D.L.R. (3d) 341, 46 B.C.L.R. 260 (C.A.).)

[24] In Hawitt v. Campell, (1983) 148 D.L.R. (3d) 341, 46 B.C.L.R. 260 (C.A.) [Hawitt CA], , the Court of Appeal articulated the circumstances in which the court may refuse a stay of proceedings and held that the same factors should apply whether the application is for a stay of proceedings or for summary trial on the issue. These factors are described by MacFarlane J.A. in Hawitt CA at paras. 20 to 23:

[20] The judge may refuse the stay if:

1. there was a limitation on the instructions of the solicitor known to the opposite party;

2. there was a misapprehension by the solicitor making the settlement of the instructions of the client or of the facts of a type that would result in injustice or make it unreasonable or unfair to enforce the settlement;

3. there was fraud or collusion;

4. there was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement.

[21] Refusal of a stay would leave the parties to their remedy in the action or in an action on the settlement.

[22] My fourth point arises from an analogy between a summary application to stay, and an application for summary judgment. In either case, if there is a triable issue then the parties ought to be left to their remedy at trial.

[23] In exercising his discretion to refuse to grant a stay, a judge will consider not only whether there was the required misapprehension by the solicitor but whether the result of that would be unreasonable or unfair to the client. It is in that sense that I understand the reference to reasonableness and fairness in the authorities cited.

[25] Finally, in Robertson the Court of Appeal clarified that the judgment in Hawitt CA deals with an application for a stay of proceedings or summary relief and does not address the legal and equitable principles that ultimately govern whether the settlement is binding on the parties. The latter question is to be determined by the ordinary principles of contract law. As Lambert J.A. says in Robertson at 388:

…But the remarks made in the course of the reasons in Hawitt v. Campbell that a stay might be refused if a settlement obtained as a result of a misapprehension was unreasonable or unfair should not be regarded as introducing a rule that settlements are not binding if they are unreasonable or unfair. In my opinion, those remarks were intended to apply to the exercise of the judge’s discretion upon a summary application for a stay. A judge hearing such an application might refuse a stay, if there had been a misapprehension of instructions, on the ground that to allow it might be unjust. The result of a refusal would be to leave the parties to seek their remedies in the action, in which the settlement might be pleaded, or to seek them separately in an action on the settlement. In short, Hawitt v. Campbell deals with the considerations which apply to the judicial discretion under s. 8 of the Law and Equity Act to grant or refuse a stay. But those same considerations do not determine whether a settlement is binding or not.

[26] Applying these principles to the case at hand, I find it would be inappropriate to grant a stay of proceedings or to grant the summary relief claimed by the defendants. In my view, Mr. Burton has raised a triable issue that there was a unilateral mistake and unfair reliance upon it by the defendants. Further, he has raised a triable issue that the offer to settle was made under a misapprehension of the facts underlying the claim such that it would result in an injustice to enforce the settlement. The parties should be left to pursue their remedies in respect of the settlement agreement at the trial of the action set to commence on April 19, 2010.

Ultimately this case serves as an important reminder that great care should be taken before making a settlement offer in an ICBC Claim otherwise the consequences could cause regret.  If the parties to this lawsuit are unable to come to a resolution before the case goes to trial the presiding Judge will certainly be asked to grapple with this interesting issue.  If that occurs I will be sure to write about the reasons for judgement once they are released

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $300,000 in total damages as a result of injuries and loss sustained in 2 BC Car Crashes.

In today’s case (Roberts v. Scribner) the Plaintiff was involved in two collisions, the first in 2005, the second in 2006.  She was not at fault for either crash.  The trial focused solely on the issue of the value of the Plaintiff’s ICBC Injury Claims.

The Plaintiff’s injuries affected her neck, mid back, low back, left shoulder collar bone and caused headaches.  She also suffered from depression and PTSD.

In assessing non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Bruce made the following findings about the Plaintiff’s injuries:

[173] I am satisfied that the soft tissues injuries Ms. Roberts suffered to her back, and to a lesser extent, her neck, have caused her substantial pain and disability since November 2005 when the first accident occurred. After the second accident she further aggravated her physical injuries, which developed into a chronic pain condition. In addition, Ms. Roberts’ psychological illnesses have aggravated her physical pain and suffering and have clearly contributed to the cycle of continuing pain. I note parenthetically that there is no dispute that Ms. Roberts’ PTSD symptoms and depression stem from the trauma of the accidents. Even the defence specialist, Dr. Smith, was of this view. At p. 5 of his report Dr. Smith says:

The most common sequel of motor vehicle accidents, particularly rear-end-type accidents, is the development of soft tissue injuries. If the soft tissue injury pain goes on for a number of months, individuals develop poor sleep and then are at risk for depression. I believe this is exactly what has happened with Ms. Roberts as a result of the two accidents.

[174] All of the specialists who examined Ms. Roberts have guarded prognosis for her complete recovery from the soft tissue injuries given the length of time they have persisted despite her tremendous efforts to rehabilitate herself. While Dr. Shah opined that some improvement could be expected in the future, he was unable to say at what point this might occur and to what extent Ms. Roberts’ condition would improve. Certainly there is some hope that different therapies may assist Ms. Roberts; however, her physical condition has plateaued since mid 2006 and she has not improved substantially since that time…

[177] The injuries caused by the accidents have also adversely affected Ms. Roberts’ ability to enjoy the recreational activities she loved to do before the collisions. She has attempted to return to snowboarding, but has not been able to tolerate more than one or two hours before the pain makes her stop for the day. Ms. Roberts has given up competitive horseback riding and the other sports she enjoyed before the accidents. Hiking and camping are also activities that she now finds too difficult to do because of the back pain she experiences when walking on an incline and sleeping on the ground. The physical and psychological injuries have also affected her social life; she is not able to sit for long periods at friends’ homes or in a movie theatre and thus spends most of her time at home seeking out a comfortable position. Her sleeplessness has affected her relationship with Mr. Harvey. They now have to sleep in separate rooms.

[178] Ms. Roberts has also undergone a complete personality change due to the injuries caused by the accident. The collateral witnesses testified about how fun- loving and comical Ms. Roberts was before the accidents and how depressed, sad and serious she has become since these events occurred. She does not enjoy life anymore and appears to function physically like a far older woman, moving slowly and stiffly and constantly attempting to find a comfortable position.

[179] Mr. Pakulak tested Ms. Roberts’ functional capacity overall, and in respect of several different movements that may be required for work, household chores, and recreational activities. There is no doubt that Ms. Roberts in many respects is functioning at a high level. However, it is also apparent that she has a reduced capacity in several functions, some of which are critical in her line of work. While the fact that she is unable to lift over 30 lbs does not render her disabled from performing the work of a graphic designer, Ms. Roberts’ reduced capacity for sitting and other movements related to working at a computer desk adversely affect her ability to carry out these duties efficiently and over an extended period. It is also important to consider that while Ms. Roberts may appear to be able bodied compared to many people, it is the changes in her life that are relevant to an assessment of damages. Before the accidents, Ms. Roberts was a youthful, extremely fit and active woman who had no difficulty whatsoever managing a full-time job, a busy social life, and an active recreational and exercise program. The functional limitations that now govern Ms. Roberts’ activities clearly represent a substantial change for her. Thus the impact on her ability to enjoy life cannot be underestimated. Moreover, in light of the guarded medical prognosis for her complete recovery, it is likely that these functional restrictions may, to some extent, continue to govern her life for the foreseeable future….

[181] Turning to the issue of quantum, it is well established that each case must be decided on its own facts. The authorities cited by the parties are useful as a guide in regard  to quantum; however, each particular case has unique factors that must be considered when awarding damages for pain and suffering and loss of enjoyment of life. In this regard, I found the authorities cited by Ms. Roberts, and in particular, the circumstances in Gosal, more closely mirror the facts in this case than the authorities cited by the defendants. Given my conclusions regarding the nature of Ms. Roberts’ injuries, the impact these injuries have had on her life, the length of time she has continued to suffer, and the guarded prognosis for her complete recovery, I find an award of $95,000 is appropriate in the circumstances.

An interesting side note to this judgement was the Court’s critical commentary of Dr. Sovio.  ICBC hired this doctor to conduct an ‘independent medical examination‘ of the Plaintiff.  As I’ve previously pointed out there are a handful of doctors who do a lot of these independent examinations for ICBC and it is not unusual for some of the reports generated by some of these physicians to contradict the opinions of treating doctors.  That indeed was the case in today’s judgement and Madam Justice Bruce pointed this out and gave ‘little weight‘ to Dr. Sovio’s opinions.  The Court made the following critical comments:

[131] Bearing in mind the anomaly of Dr. Sovio’s report, his lack of independent recollection of the interview, and the failure to cross examine Ms. Roberts on what is recorded in his report, I find little weight can be placed on his recorded history of her complaints and symptoms. It is also important to note that Dr. Sovio did not record Ms. Roberts’ exact words. Thus there may be errors of interpretation in his assessment of her pain levels, as well as her history of past and current symptoms…

While Dr. Sovio has come to a conclusion that Ms. Roberts is no longer suffering from her soft tissue injuries, I find his opinion is clearly inconsistent with the considered opinions of a variety of different specialists. As such, I find little weight should be placed on his assessment.

(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)

X-rays, CT Scans, Bone Scan and MRI’s are routinely used in the diagnosis of traumatic injury and accordingly the findings of these diagnostic tests are frequently used at trial by personal injury lawyers.

Strictly speaking, however, the findings of radiologists interpreting the raw data generated by these tests are opinions and opinion evidence needs to comply with the Rules of Court to be admissible.  If an MRI shows a traumatic injury it is not good enough to show up at trial with only the radiologists consultation report in hand.  If you want the Court to rely on the radiologists findings of injury the reports need to be served in compliance with Rule  40A (Rule 40A is being overhauled in July 2010 and you can click here to read my previous article discussing this) Reasons for judgement were released today by the BC Supreme Court showing this legal principle in action.

In today’s case (Wittich v. Bob) the Plaintiff was injured in a 2004 BC Car Crash near Merritt, BC.  She sued for her injuries seeking up to some $800,000 in damages.  She claimed various accident related injuries including a herniated disc at C5-6.  In support of this claim two CT Scan Reports were entered into evidence, the first taken before the crash and the second after the crash.  The later scan was “interpreted by the radiologist as showing….a c56 level …herniated disc“.

The radiologist’s consultation report did not comply with Rule 40A.  Accordingly the report was only admitted for the fact that the diagnosis was made but not for the truth of the opinion.  Ultimately the court did not make a finding that the herniated disc was caused by the car crash.    Madam Justice Bruce summarized and applied the law to the facts of this case as follows:

[143] Of particular concern is the plaintiff’s failure to call any medical opinion evidence to support a finding that she suffered a herniated disc at C5-6 during the accident. As part of Dr. Grist’s clinical records, Mrs. Wittich entered two CT scan reports; one taken prior to the collision and one taken shortly thereafter. While the later scan was interpreted by the radiologist as showing a change from disc degeneration at the C5-6 level to a herniated disc that was impinging on the nerves of the spinal canal, this evidence cannot be regarded as expert medical opinion. These reports do not comply with Rule 40 and contain no indication of the radiologist’s qualifications and expertise to make these findings. Thus they are only admissible for the fact that this diagnosis was made and not for the truth of their contents.

[144] Moreover, even if I were to accept these reports as expert opinion evidence, there is the cogent evidence of Dr. Maloon, an orthopaedic surgeon, which supports a contrary finding as to the existence of a disc herniation. Dr. Maloon provided a detailed explanation for his conclusion that Mrs. Wittich did not suffer from a herniated disc, which included factors related to his physical examination of Mrs. Wittich and the symptoms she presented with at the time of his examination and interview. Dr. Maloon was qualified as an expert in the field of orthopaedic surgery and qualified to give opinion evidence as to the existence, cause and prognosis of spinal cord injuries. His evidence was thoroughly tested in cross examination and held up to scrutiny. In my view, it would be in the most unusual circumstances that the court would prefer the radiologist’s report to the evidence to that of Dr. Maloon and I find there are no such circumstances in this case. There is no evidence of the radiologist’s qualifications or expertise and no explanation of the reasons underlying his diagnosis.

[145] As a consequence, I find there is really no medical evidence before the court that Mrs. Wittich suffered any injuries to her neck apart from soft tissue complaints. In this regard, it was Dr. Maloon’s evidence that she likely experienced such injuries in the accident, but he was unable to specify which tissues (muscles, ligaments, or facet joints) were damaged based on Mrs. Wittich’s subjective reporting of vague pain symptoms.

The Plaintiff’s claim was largely dismissed and damages of just over $30,000 were awarded.  This case serves as a reminder that if the findings of a radiologist make up an important part of your personal injury case the evidence has to be served in compliance with the rules governing expert opinion evidence.