ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for “mostly resolved” soft tissue injuries.

In last week’s case (Vela v. MacKenzie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered various soft tissue injuries which, while not resolved, were largely recovered by the time of trial.  In assessing non-pecuniary damages at $27,000 Madam Justice Maisonville provided the following reasons:

[69] The Court must assess damages for injury to the plaintiff.  I find those injuries to be soft tissue injuries to the plaintiff’s neck, shoulder and trapezius area which were at their worst for the first 15 months.  At that time the pain changed to stiffness and by June 2011 was mostly resolved but was continuing sporadically. I find the headaches lasted six to eight months; the back of the hand injury had resolved after approximately three months…

[87] I find in the present case that Mr. Vela has met the burden of proof with respect to injuries he sustained to his neck, upper back and trapezius area, and those to his left hand as well as the headaches that he suffered initially. I find that, with some exceptions, the pain had largely resolved within 15 months, with continuing improvement to where the plaintiff felt he was functioning at 75 per cent to 80 per cent by June 2011. He has now only occasional flare-ups. I consequently find the injuries to be more severe than submitted by defence counsel but far less severe than submitted by the plaintiff.  I find the soft tissue injuries sustained by the plaintiff to be more akin to those sustained by a plaintiff in Hussainyar v. Miller, 2012 BCSC 405 where Allan J. awarded $27,000 in non-pecuniary damages where the injuries had largely resolved within one year but continued in part to trial, some 27 months after the accident.  (See also Robinson v. Anderson,2009 BCSC 1450 $25,000 no permanent or long-term injury or pain Hsu v. Williams, 2011 BCSC 1412 $30,000 award before deduction for failure to mitigate.)  An important principle is to be fair and reasonable to both parties (See Miller v. Lawlor, 2012 BCSC 387 para. 109 considering Andrews v. Grand v. Toy Alberta Ltd., [1978] 2 S.C.R. 229; Jackson v. Lai, 2007 BCSC 1023, para.134 and Kuskis). In all the circumstances, I award $27,000 in non-pecuniary damages.

In the latest judicial demonstration that the so-called Low Velocity Impact Defence is not the law, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, awarding damages following a motor vehicle collision.

In yesterday’s case (Sun v. Sukhan) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist.  The collision caused very little vehicle damage.  The Defendant stressed this during trial.  Madam Justice Maisonville provided the following reasons addressing the value of this evidence:

[22] The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

The Court went on to find that the collision caused soft tissue injuries that largely resolved after 21 months but continued to occasionally flare.  In assessing non-pecuniary damages at $20,000 the Court provided the following reasons:

[55] In all of the circumstances, I find while the plaintiff’s injuries had largely resolved within one year and nine months, he has some ongoing complaints of pain, coupled with his inability to perform certain activities as a consequence of his fear of causing flare-ups to his lower back such as carrying heavy objects.

[56] Taking evidence as a whole, I find that the plaintiff has, on a balance of probability, proved he was injured from this accident for one year and nine months and that he presently has some minor complaints on occasion relating to his lower back and neck, but that these are not preventing the plaintiff from enjoying his pre-accident state of health and activity level.

[57] I award the following:  Non-pecuniary  damages: $20,000

For more on this topic you can click here to access my archived posts addressing ICBC’s Low Velocity Impact Policy.

Reasons for judgement were released earlier this month assessing damages for a knee injury caused in a 2007 collision.

In the recent case (Dulay v. Lachance) the Plaintiff was injured in a broadside collision. Fault for the crash was admitted by the offending motorist. The Plaintiff suffered from chronic knee pain and dysfunction following the crash. The trial focused largely on whether the collision was responsible for this.

Investigation following the collision revealed that the Plaintiff had pre-existing arthritis in his knee. As is often the case, this condition was asymptomatic prior to the crash.

The plaintiff presented medical evidence suggesting the collision was responsible for the onset of pain. The defendant argued the collision was coincidental to the onset of symptoms. The court preferred the Plaintiff’s evidence. In assessing non-pecuniary damages at $75,000 Madam Justice Maisonville applied the ‘golden years‘ doctrine and provided the following reasons:

[78] Dr. McLeod had described the contusion to the right medial femoral condyle and medial tibial plateau (very simply put – the area where the femur meets the lower leg bones) as mild, but as noted he separated this injury from the triggering of the arthritis as clarified in his second report. I accept his evidence on this point and find that his attribution of “mild” to the injury did not mean to incorporate the onset of symptoms of osteoarthritis.

[79] Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.

[96] The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.

[97] The plaintiff relies on the report of Dr. Grover who wrote:

It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.

As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident…

[106] There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident…

[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[124] I find Griffin J.’s reasoning apt here in Mr. Dulay’s case where he is nearing retirement and has lost the ability to function in a way that has altered how he lives.

[125] Additionally, Mr. Dulay continues to work and perform everything he can. He has not asked for his employer to accommodate him. He is a team player and endeavours to do everything he can even though he must stop, take medication, and bear much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet, 2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:

Stoicism of the plaintiff should not reduce the award.

[126] In all the circumstances of the case I award the plaintiff $75,000 in non-pecuniary damages.

Further to my previous posts on this topic, if a lawyer accepts an ICBC offer without clear client instructions a binding settlement could be created leaving the remedy of a separate claim against the lawyer in negligence.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.

In last week’s case (Ng v. Schell) the Plaintiff was injured in a 2007 motor vehicle collision.  She retained a lawyer who allegedly entered into a settlement agreement for $95,000 plus taxable costs and disbursements.  The client apparently did not give instructions to accept such an offer.

The client retained new counsel and attempted to proceed to trial.  ICBC brought a motion to dismiss the lawsuit arguing a binding settlement had been reached.  Ultimately Madam Justice Maisonville declined to determine the issue in a Chambers Application and ordered that the matter proceed to trial so that the former lawyer could be subpoenaed and give evidence as to what occurred.  Prior to disposing of the matter the Court provided the following summary of the relevant legal principles:

[8] Both counsel agree that in a situation where a judgment has been rendered, normal rules of contract and agency are applicable.  However, in an interlocutory matter, such as here, where there is not yet a judgment, then the situation must fall into one of the four exceptions outlined in Hawitt for the court to have discretion to deny the application to order the settlement valid and enforceable and stay the proceeding.  Those four notable exceptions are set out in Hawitt at paragraph 20:

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.

[9] The first analysis, of course, is whether the previous solicitor was acting on instructions.  One of the leading cases in British Columbia is that of Smoliak v. Smart (Guardian ad litem of), [1995] B.C.J. No. 1559 (S.C.) where, at para. 17, Drake J. held:

17  Solicitors, of course, are agents of their clients in accordance with the terms of their retainers; and when retained to conduct litigation have the authority to compromise and settle an action brought for a client.

[10] It is settled law that a solicitor has authority to enter into settlement agreements as agent for the client in such circumstances and that if there is any restriction on that authority, notice must be given to the other side of such a want of authority.  Otherwise, in the absence of the other side being aware the authority was limited or restricted, the opposing side is entitled to rely upon the authority to settle.  The only exceptions, accordingly, in a situation where there appears to be authority to settle are the above exceptions from Hawitt.

As a practical matter these types of disputes can be avoided if settlement instructions are provided in writing, or, better yet, by clearly communicating in the course of negotiations that binding settlement will be made subject to clients confirming instructions evidenced by a signed full and final release.

Rule 6-1 deals with amendments to BC Supreme Court pleadings.  Unless the opposing parties consent, once a trial date is set pleadings can only be amended with permission from the Court.  Authorities under the former Rules of Court established a very low threshold for obtaining a Court’s permission.  The first case I’m aware of dealing with this issue under the New Rules was released last week by the BC Supreme Court, Vancouver Registry, confirming that the law remains unchanged.

In last week’s case (TJA v. RKM) the Defendants wished to amend their pleadings by raising the defences of absolute and qualified privilege.  The Plaintiff opposed arguing they would be prejudiced if the amendment was permitted as the lawsuit was mature with examinations for discovery complete.   The Court permitted the amendment and remedied the prejudice raised by the Plaintiff with a costs order.  In reaching this result Madam Justice Maisonville confirmed the law remains unchanged under the new rules and provided the following reasons for judgement:

[12] Rule 6 – 1 (1) (b) (i) provides:

Rule 6-1 — Amendment of Pleadings

When pleadings may be amended

(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:

(i) the date of service of the notice of trial, and

(ii) the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with

(i) leave of the court, or

(ii) written consent of the parties of record.

[13] In Langret Investments v. McDonnell, BCCA March 18, 1996 C.A. 020285 Vancouver Registry, Rowles J.A. for the Court, considering the predecessor rule to 6-1(1)(b)(i), held:

Rule 24(1) of the Rules of Court of British Columbia allows a party to amend an originating process or pleading.  Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless.

[14] The rationale for allowing amendments is to enable the real issues to be determined.  The practice followed in civil matters when amendments are sought fulfills the fundamental objective of the Civil Rules which is to ensure the “just, speedy and inexpensive determination of every proceeding on the merits”. (See also McLachlin and Taylor, in British Columbia Practice, 2d ed. looseleaf (Butterworths, 1991) pages 24-1 to 24-2-10, and the decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10).

In British Columbia motorist’s obligations to turn headlights on are set out in section 4.01 of the Motor Vehicle Act Regulations.  This section state that :

4.01 A person who drives or operates a vehicle on a highway must illuminate the lamps required by this Division

(a)  from 1/2 hour after sunset to 1/2 hour before sunrise, and

(b)  at any other time when, due to insufficient light or unfavourable atmospheric conditions, objects on the highway are not clearly discernible at a distance of 150 m.

Reasons for judgement were released today by the BC Supreme Court considering this section and determining whether a motorist can be partially at fault for a crash for failing to have their lights on prior to sunset.

In today’s case (Schurmann v. Hoch) the Plaintiff was involved in a two vehicle collision.  He was leaving a stop sign and attempting to turn left at an intersection when the Defendant, approaching from the Plaintiff’s left, struck the Plaintiff’s vehicle.   The Defendant was the ‘dominant‘ driver and had the right of way.  The Plaintiff was found at fault for leaving a stop sign when it was unsafe to do so.  However the Court was also asked to determine if the Defendant was partially at fault.

At the time of the crash it was a few minutes prior to sunset.  The lighting conditions “posed visual problems for a person attempting to turn left“.  The Defendant was driving a dark pick-up truck and did not put on his vehicle’s running lights or headlights.   The Defendant was found 50% at fault for this failure.  In arriving at this decision Madam Justice Maisonville provided the following reasons:

[44]         I conclude, however, on the facts before the court that the defendant, driving a dark navy pickup truck without running lights or headlights in effect at approximately less than five minutes before sunset in conditions where there were clouds and it had commenced spitting and light raining, was negligent and failed to act reasonably in all of the circumstances by not putting on the running lights and headlights of his vehicle to make himself visible to other motorists.

[45]         I find that the defendant by failing to have his running lights on was negligent. His actions created an objectively unreasonable risk of harm. The defendant argues that he was in compliance with the statute insofar as it was not necessary to have the lights of his vehicle on as it was not yet sunset. I find however that section 4.01(a) of the Regulations speaks to ideal weather conditions, not conditions as they existed on the afternoon and early dusk of January 10, 2006. Those were cloudy conditions in circumstances where it had just begun to rain. Accordingly this situation was governed by s. 4.01(b) of the Regulations.

[46]         In considering the issue of the impact of breach of a statute, Dickson J., as he then was, held at page 225:

Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach: see Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.

[47]         It must not be forgotten that the other elements of tortious responsibility equally apply to situations involving statutory breach, i.e. principles of causation and damages. To be relevant at all, the statutory breach must have caused the damage of which the plaintiff complains. Should this be so, the violation of the statute should be evidence of negligence on the part of the defendant (see Saskatchewan Wheat Pool).

[48]         The defendant submitted to the court that in order to find negligence one must first find a breach of the statute. I am mindful of the comments of Dickson J. Other elements of tortious responsibility equally apply – it is not necessary to find breach or for that matter compliance with a statute to find actions that created an objectively unreasonable risk of harm…

50] In this case, but for the defendant not having his running or head lights on, the plaintiff would have seen him, and would not have attempted the turn. The defendant thus breached the duty of care he owed to the plaintiff causing the plaintiff the unforeseen risk of injury ─ and he did in fact suffer injury.

(photo depicting muscle deformity from ruptured distal bicep tendon)

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.

In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision.  His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”

The Plaintiff’s vehicle sustained significant damage and was written off.  Fault for the collision was admitted.

The Plaintiff sustained a variety of soft tissue injuries.  The Plaintiff also tore his bicep tendon which caused a muscle deformity.  The most contentious issue was whether the tendon was torn as a result of the collision.  Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000.  In reaching this decision Madam Justice Maisonville noted as follows:

[42]         I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.

[43]         The biceps tendons are attached to the bone, which anchors the muscle.  When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…

49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength.  Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…

[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:

The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.)…

[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..

The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.

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• Video Surveillance

This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.

As I’ve previously posted, video surveillance can and does occur and it can be intrusive.  However, video surveillance in and of itself does not harm a person’s injury claim.  Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations.   In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:

[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.