ICBC Law

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.

Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:

[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?

The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.

In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.

This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.

The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:

21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.

22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.

23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.

24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.

25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.

26. The appeal is allowed and Master Bouck’s orders will be set aside.

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.

In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries caused by a so-called Low Velocity Impact.

In today’s case (Pearlman v. Phelps Leasing Ltd.) the Plaintiff, a 77 year old retired lawyer, was involved in a 2007 collision.  He had pre-existing injuries from a 2004 collision and the Court found that these were exacerbated for a short while following the 2007 crash.  The Court expressed serious concern about the Plaintiff’s credibility with the following observation:

[3] The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. Amongst his many inconsistencies and exaggerations, the most shocking was that the testimony of his injuries in the trial before me was nearly identical to the testimony he gave at the 2008 trial, in which he blamed the 2004 Accident for all the problems he was experiencing in 2008.

Despite this the Court found that the Plaintiff did suffer injury in the 2007 crash.  In assessing non-pecuniary damages at $20,000 Madam Justice Kloegman provided the following comments:

[44] After having reviewed all of the exhibited medical records and reports, and after considering all of the viva voce testimony, it seems fair to conclude, on a balance of probabilities, that it is more likely than not that the plaintiff experienced from the 2007 Accident an exacerbation of his pre-existing symptoms. However, it appears to have been minor and not long in duration. The plaintiff developed no new symptoms. He was back doing physical labour within a few days, and his complaints from that time to the present would likely have continued, regardless of the 2007 Accident. His pre-existing condition was well described by Dr. Baird and Dr. Keyes and there was no reliable, positive evidence to indicate that he developed some further injury of a permanent nature as a result of the 2007 Accident. It is telling, indeed, that the plaintiff’s statement of claim with respect to the 2004 Accident is almost identical to his statement of claim respecting the 2007 Accident…

[47] The case law indicates that a reasonable award of non-pecuniary damages for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is interesting to note that in both these other cases, the plaintiff was found to be lacking credibility and the Court was obliged to rely on the medical evidence to determine the cause of the plaintiff’s claims of injury. I find myself in a similar position, and on the evidence before me, I award the plaintiff $20,000 in total damages arising from the 2007 Accident.

(Update November 16, 2011 - The case discussed in the below post has now been published and full reasons for judgement can be found here)

One of the patterns that is becoming very clear under the New Rules of Court is that Parties ignore the 84 day requirement for exchange of expert evidence at their peril.

Often times Defendants apply for an order compelling a Plaintiff to attend an Independent Medical Exam beyond this deadline.  Numerous cases have considered such applications with the argument that an assessment is necessary in order to obtain a ‘responding‘ report under the more generous 42 day deadline of Rule 11-6(4).  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, considering and rejecting such an argument.

In today’s case (Scott v. Ridgway) the Plaintiff was injured and sued for damages.  In the course of the lawsuit the Plaintiff served the report of a vocational consultant.  The Defendant applied for an order to compel the Plaintiff to attend an independent exam in order to obtain a responding report.   The Defendant brought the application after the 84 day deadline.  Madam Justice Kloegman dismissed the application finding that prejudice is not enough to compel an IME for the purpose of a responding report.  The Court provided the following useful reasons:

[6]  I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report.  I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of lack of examination of the plaintiff.  However, if they are prejudiced, it is of their making and not the result of any conduct of the plaintiff.

[7]  The rules are clear.  They must be obeyed in the absence of special circumstances.  There are no special circumstances here that would allow the defendant to file a report containing fresh opinion.  The defendant will be restricted to analyzing and respond to the plaintiff’s report.

I should note that some previous cases have ordered physical examination for responding report purposes, however, in such cases the Court was presented with affidavit evidence from the proposed expert explaining why such an examination is necessary.

In today’s case the Defendant did provide an affidavit from a doctor but the court placed no weight in it and criticized it for being “lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook”.

Today’s reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

If you want to sue somebody in British Columbia one thing that must be considered is whether the BC Supreme Court has jurisdiction to hear the case.  With few exceptions, a Defendant can’t be sued in the BC Supreme Court unless they live here, consent, or if there is a “real and substantial connection” between British Columbia and the subject of the lawsuit.  Reasons for judgement were released earlier this week applying this test.

In this week’s case (Broman v. Machida Mack Shewchuck Meagher LLP) the Plaintiff was injured in a 2004 motor vehicle collision in Alberta.  He hired a BC lawfirm to help him with his claim.  That lawfirm told him he ought to sue in Alberta.  The BC lawfirm then hired an Alberta lawfirm to assist with the lawsuit.

Ultimately the Plaintiff was displeased with the result reached.  The Plaintiff alleged that his lawyers did not sue all the entities they should have and this compromised his rights.  The Plaintiff brought a lawsuit against the various lawyers in the BC Supreme Court.  The Alberta defendants challenged the lawsuit arguing that the BC Supreme Court does not have the jurisdiction to hear the claim.   Madam Justice Kloegman agreed and ordered that the lawsuits be transferred to Alberta.  In reaching this conclusion the Court provided the following reasons explaining why the BC Supreme Court did not have a ‘real and substantial‘ connection with the facts underlying the lawsuit:

[25]        One of the stated purposes of the CJPTA is to bring Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.  In Morguard at 1108-1109, La Forest J. observed that reasonable limits must be placed on the exercise of jurisdiction against defendants served outside of a province if the courts of other provinces were to be expected to recognize each other’s judgments.  He did not define the “real and substantial connection” test, but remarked that it was not intended to be a rigid test. It should simply capture the idea that there must be some limits on the claims to jurisdiction.  He noted that the principles of order and fairness required consideration of the interest of the parties.  He concluded that the approach of permitting suit where there is a real and substantial connection with the action provided a reasonable balance between the rights of the parties,

[26]        When I apply the concept of order and fairness in deciding jurisdiction in the cases before me, I must side with the Albertan defendants.  They did not come to British Columbia looking to perform services for which they may be responsible to answer for in a British Columbia Court.  The plaintiff and SHB sought them out in Calgary where they practiced and where they would have expected to answer for any deficiencies in their service.  On top of that, it would be more orderly (and undoubtedly safer) for an Alberta Court, which would be more familiar with Alberta standards of practice, the legislation and law governing motor vehicle accident injury awards in Alberta, claims on the Fund, and Alberta limitation periods, to decide the issues in dispute.

[27]        S. 6 of the CJPTA has no application because the Alberta Court of Queen’s Bench is a court of competent jurisdiction and is available to try these matters, without being inordinately inconvenient to Mr. Borman and SHB.  Therefore, I am transferring both of these proceedings to Alberta where they can be litigated together.  In doing so, I am well aware that Mr. Broman would ordinarily be entitled to sue his British Columbia lawyers in British Columbia.  However, as I stated earlier, at the heart of both these actions is the conduct of MM, not SHB.  There is nothing in the pleadings or the evidence before me to suggest that SHB are liable to Mr. Broman except vicariously for any negligent conduct of MM.  It would be impractical to hive off Mr. Broman’s claims against SHB from the rest of the action and I see no reason to do so.

[28]        Therefore the defendant MM shall have an order transferring the entirety of both the Vancouver and New Westminster actions to Calgary, Alberta pursuant to Part 3 of the CJPTA.  The details of the order required to ensure the effective transfer of the proceedings to Alberta can be spoken to if counsel cannot agree.

You can click here to read my other posts discussing the BC Court Jurisdiction and Proceedings Transfer Act and the Jurisdiction of the BC Supreme Court.

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

Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court.  Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show.  Excluding such evidence can be fatal to a claim.  2 judgements were released today demonstrating this principle.

In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash.  At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘.  The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given.  Mr. Justice Schultes agreed and in doing so gave the following reasons:

[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient.  The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it.  At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays.  It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence.  Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

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In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.”  The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion.  The radiologists report was not put into evidence and the radiologist was not called as a witness.

The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances.  The Court agreed.  In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption   that there has been a partial tear of the subscapularis tendon.  The defendant takes issue with that alleged fact.  The plaintiff has taken no steps to prove the truth of this assumption.  Originally, she did not intend to enter the radiologist reports interpreting the MRI scans.  Now counsel advises that she could lead them through Dr. Chu.  However, all this would do is show the source of Dr. Chu’s assumption.  It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists.  Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear.  Dr. Chu’s second report is based solely on this assumption of a partial tear.  There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

(Please note the Trial Court’s decision regarding mitigation of damages in the below post was overturned on Appeal.  You can click here to read the BC Court of Appeal’s judgement)

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with an assessment of damages for a shoulder injury, specifically a post traumatic tendinopathy.

In today’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC.  Her vehicle was struck while travelling through an intersection by the Defendant who failed to stop at a stop sign.  Fault was admitted by ICBC focusing the trial on the Plaintiff’s injuries.

• Non-Pecuniary Damages Discussion

The Plaintiff suffered various soft tissue injuries to her neck and back that healed before trial.  The Plaintiff’s worst injury was to her left shoulder.   Dr. Day, an orthapeadic surgeon gave evidence that the Plaintiff suffered an “abnormality in the subscapularis tendon at the site of the superior border.  In addition there was inflammation in the subacromial bursa.”  Dr. Day also testified that the plaintiff had a “post traumatic tendinopathy causing some discomfort“.

The Plaintiff required surgery to “clean up” a “thick, tight subacromial bursa” because this caused irritation.

Following this the Plaintiff continued to have some shoulder pain which was aggravated by certain movements.  The Court accepted that this would likely continue into the future.  In assessing the non-pecuniary loss the Plaintiff suffered as a result of her injuries at $60,000 Madam Justice Kloegman found as follows:

[11] Due to the plethora of shoulder injury cases in the case law, it is important to distinguish the plaintiff’s shoulder injury from some of the shoulder injuries suffered by other plaintiffs in other cases. In the case at bar, the plaintiff does not have:

1.       neurological deficit;

2.       instability in her shoulder;

3.       frozen shoulder;

4.       restricted range of motion;

5.       dislocation or subluxation;

6.       arthritis; and

7.       muscle wasting.

[12] However, I accept that the plaintiff does have ongoing chronic pain in her shoulder which is exacerbated by certain movements. There was no suggestion that the plaintiff was a malingerer or was exaggerating her symptoms. Notwithstanding that pain is a subjective symptom, the medical professionals found some objective corroboration in the tendinopathy and bursitis. Unfortunately, the plaintiff will likely continue to suffer various degrees of pain in her left shoulder in the future. To this extent she is mildly restricted in her activities and potential for employment.

[13] In summary, I find that the accident caused injury to the plaintiff, primarily in her left shoulder joint, which injury is mildly impairing and likely of a permanent nature. This injury has caused and will continue to cause the plaintiff pain and suffering, and has caused and will continue to cause some loss in her ability to earn income both in the past and the present. ..

[21] As I have found that the plaintiff is likely permanently impaired, albeit to a minor degree, the cases of Thauli, Grant and John are more helpful. Reviewing these cases and keeping in mind the more severe injuries described in those cases, I am of the view that $60,000 is reasonable compensation for the plaintiff’s pain and suffering in this case.

• Failure To Mitigate

This case is also worth reviewing for the Court’s discussion of the law of mitigation.  Here Madam Justice Kloegman found that the unreasonably failed to follow her doctors advice to have a cortisone injection in her shoulder.  The court found that there was a chance that this would have improved her symptoms.

The Plaintiff did not follow her doctor’s recommendation apparently because of “what she read on the internet” and discussions she had “with her claims adjuster and chiropractor“.  The court found that these were unreasonable explanations for not following the doctor’s advice and as a result reduced the Plaintiff’s damages by 10%.  The Courts discussion of mitigation can be found at paragraphs 34-35 of the reasons for judgement.

Reasons for Judgement were released today by the BC Supreme Court, Fort St. John Registry, dealing with an interesting set of facts.

In today’s case (Shular v. Seneca Enterprises Ltd.) the Defendants owned/operated a motor home that stalled. The Plaintiff came across this stalled vehicle and tried to assist the Defendants.  The Plaintiff helped move the motor home across the road then got under it trying to repair it when it rolled back over him and caused serious injury to his hip and leg.

The Defendants were found 75% responsible for the Plaintiff’s damages for failing to engage the emergency brake before allowing the Plaintiff under it and the Plaintiff was found 25% at fault for failing to verify if the vehicle was safe before trying to repair it.

In coming to this finding Madam Justice Kloegman made the following findings and analysis:

I find from all the evidence, on a balance of probabilities, that (the Defendant) likely knew, or ought to have known, that the plaintiff had gone under the motor home to try and change the gears of the motor home manually…

[9] I find that the defendants owed a duty of care to the plaintiff to ensure that the motor home was safely secured while he was under it.  The reasonable standard of care in such a situation is set out in the Occupational Health and Safety Regulation, B.C. Reg. 296/97, of the Worker’s Compensation Act, R.S.B.C. 1996, c. 492, and the Seneca Enterprises Ltd. protocol as described by Wahl.

[10] Section 17.2.2(2)(b) of the Occupational Health and Safety Regulation of the Worker’s Compensation Act states that the following procedure must be in place if a vehicle is used to transport workers:

The parking brake must be engaged when the vehicle is left unattended and the wheels locked or chocked if the circumstances require.

[11] Wahl testified that it was standard protocol for them to lock and secure the vehicle if they were not in it.  He said the front of the motor home was on a slight incline so it was common sense to put rocks under the wheels to keep the motor home from moving backwards.

[12] The evidence shows that this standard of care was clearly breached by the defendants.  Bond openly admitted that he did not engage the emergency brake when he locked up the motor home, and took no steps to secure it from movement.  Wahl admitted he was not sure whether they had put rocks under the tires; he thought that they had done so, but that they had not done a very good job of it.

[13] Given the defendants lack of care in the circumstances, they must be found liable to the plaintiff for the accident.  In my opinion, it matters not whether the defendants felt intimidated by the plaintiff and his group. ..

[14] From the defendants’ conduct it is reasonable to infer that the plaintiff had the agreement and the consent of the defendants to push the motor home into a safer location and to attempt to repair it.  The defendants cannot now say that because they did not initially ask the plaintiff for assistance, that they were not responsible for what ensued.  I find that the motor home was in the care and control of the defendants throughout this time period, and that they never lost custody of it to the plaintiff or his group.

[15] The defendants submit as an alternative plea that the plaintiff was contributorily negligent, and I tend to agree.  The plaintiff described what was quite a risky procedure of moving the transmission manually into drive so the motor home could be mobilized.  He admitted in cross examination he didn’t know what gear the transmission was in, and that he “assumed” the emergency brake was on and “assumed” the motor home was in neutral.  He made no independent check to see if his assumptions were correct and I find that he did not take sufficient care for his own safety in the circumstances.  I accept his explanation that he thought Bond was attending to the brake, but he should have made sure of this before moving the gears.

[16] Given all the circumstances, and the respective degrees of fault, I find that the plaintiff should be held twenty-five percent liable for his injuries and that the defendants should be held seventy-five percent liable for the plaintiff’s injuries.