ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a concussive injury sustained in a motor vehicle collision.

In last week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured in a 2007 intersection collision.  The force of impact propelled the Plaintiff into his vehicle’s windshield resulting in a concussive injury, significant scarring and various soft tissue injuries.

The injuries largely improved in the following years but the Plaintiff was left with some residual symptoms in addition to his forehead scar.  Madam Justice Ross assessed non-pecuniary damages at $50,000 (although this figure was then reduced to $27,500 for the Plaintiff’s failure to wear a seatbelt and further for his failure to mitigate his damages).  In arriving at this figure the Court provided the following reasons:

[92] In this case I have concluded as noted above that Mr. Abdalle suffered a serious laceration, concussion and soft tissue injury to his neck and back in the accident. He was left with a significant scar on his forehead. He suffered from nausea, dizziness, headache pain and stiffness in his neck and back as a result of his injuries. He was significantly disabled and largely bedridden from the time of the accident until September 2007, when he was able to return to work. He was not able to attend to functions of daily living such as cooking and household chores at this time and was unable to engage in the many activities that he had enjoyed before the accident. His sleep and mood were affected.

[93] With the passage of time his symptoms improved. As he conceded in his examination for discovery, the dizziness was essentially resolved after a year. By October 2009 he was experiencing headaches perhaps twice a month and flare ups of neck pain every couple of months. I accept that he continues to experience periodic flare ups of neck and back pain and headache.

[94] He was able to return to work in September 2007 and has been able to function at the workplace since that time. While he has not returned to his pre-accident level of activity, I find that the injuries he suffered in the accident do not and will not prevent him from taking part in any vocational or recreational activities. Upon a review of the cases cited by counsel and having regard to my findings concerning Mr. Abdalle’s injuries and their impact on his activities and the quality of his life, I assess non-pecuniary damages prior to reduction for mitigation and contributory fault at $50,000.

As previously discussed, if a person fails to take reasonable steps to mitigate their damages following a personal injury the compensation they are entitled to is reduced accordingly.

There are some clear examples where a person will not be penalized for failing to mitigate their damages such as when they are financially unable to follow their doctor’s advice.  But what about pre-existing religious views?  Can a person be penalized by a damage reduction for failing to follow medical advice where their refusal to do so was based on a religious belief?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this interesting topic.

In this week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff suffered a head injury when he was struck at an intersection by an RCMP cruiser.  Fault for the crash was admitted.

In the course of recovery the Plaintiff failed to follow various suggestions made by his medical practitioners.  The Plaintiff argued his damages should not be reduced as this failure was based on religious beliefs.  Madam Justice Ross did not address the issue head on as she was not satisfied that the Plaintiff’s decisions were based on “sincerely held religious or spiritual objection“.  Despite this finding the Court made the following observation about this little tested area of law:

[71] In addition, counsel submits that Mr. Abdalle has spiritual and religious objections to drug use. Counsel submits that adherence to a sincerely held religious belief should not be considered a failure to mitigate damages. In counsel’s submission this should be an application of the principle of tort law that the tortfeasor takes the victim as he finds him.

[72] The medical evidence establishes that the recommended treatments would likely have assisted Mr. Abdalle, that there were no contraindications in his case and that the risks were minimal. Accordingly, unless Mr. Abdalle’s spiritual objections provide a reason to refuse treatment, I conclude that Mr. Abdalle’s refusal to follow the recommendations of his physicians was unreasonable…

[75] It appears that the particular question of whether pre-existing religious beliefs would constitute a reasonable basis for a refusal of medical treatment has not been addressed in this jurisdiction. Jamie Cassels and Elizabeth Adjin-Tettey wrote in Remedies: The Law of Damages, at pp. 292 and 393 that “there is little authority on this issue”, and cite two American decisions as guidance. Neither of these cases have been cited in Canadian jurisprudence. Moreover, from Janiak it is clear that the American position on this issue takes subjective attributes into consideration to a greater degree than in Canada (Janiak, p. 160). Cassels and Adjin-Tettey opine at p. 392 that:

According to the Janiak test, where a medical treatment is otherwise obviously required, religious or ethical objections would not provide an excuse from mitigating unless those objections rendered the plaintiff incapable of choice or could be assimilated to ‘pathological’ conditions.

[76] Ken Cooper-Stephenson also explored this topic in Personal Injury Damages in Canada and expressed a different view. He stated at p. 876 that:

[l]f a pre-existing religious belief or cultural practice inhibits or prevents the plaintiff’s capacity to choose a certain form of treatment…then it is almost certain that the plaintiff will not be adjudged unreasonable in the refusal… Defendants take their plaintiffs as they find them with respect to their religion, their culture, and their socio-economic setting.

He does not, however, provide any Canadian authority in support of this proposition.

[77] Professor Cooper-Stephenson also argues that there is a move towards subjectivism, with one approach including religious belief and cultural practice within the notion of “capacity” fromJaniak. He says, at p. 879, that as for religious belief and cultural practice:

…their recognition as fundamental constitutionally-protected interests in the Canadian Charter of Rights and Freedoms almost certainly requires that they be respected in post-action choices for the purposes of the duty to mitigate.

[78] There are two questions to be addressed in relation to this issue. The first is whether, to what extent, and under what circumstances a religious or cultural belief will be taken into consideration in addressing the plaintiff’s duty to mitigate. As noted above, it appears that the answer to this question may not be settled in Canadian jurisprudence. The second question is whether in the particular case, the plaintiff’s failure to follow a recommended course of treatment is the result of adherence of a religious or cultural belief or practice.

[79] In my view, this is not the case to make a determination with respect to the first question because I have concluded that the factual foundation is simply not made out for the Court to conclude that the reason for the refusal of treatment was a sincerely held religious or spiritual objection on the part of Mr. Abdalle…

[81] In the result, I am satisfied that Mr. Abdalle’s refusal to take the Nortriptyline prescribed by Dr. Dhawan and his failure to follow the recommendation to take facet block injections was not the product of a religious or spiritual objection. In addition, I find Mr. Abdalle’s failure to continue with swimming, to become more active, to attend a further course of physiotherapy, to take the Nortriptyline as prescribed and the facet block injections as recommended was unreasonable in all the circumstances and in breach of his duty to mitigate.

If a BC Supreme Court Judgement is silent with respect to costs following trial the default Loser Pays system kicks in as a result of Rule 14-1(9).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this default position.

In last week’s case (Habib v. Jack) the Plaintiff’s personal injury lawsuit was dismissed following trial. The trial Judge’s reasons did not set out any costs order.  The Defendant sought their costs but the Plaintiff opposed this arguing that silence on costs in the trial judgement makes the issue ‘res judicata’.  Madam Justice Ross disagreed and provided the following short but useful reasons:

[9] The plaintiff’s res judicata argument has previously been considered and rejected by this court. In Graham v. Great West Life et al., 2004 BCSC 1544, Sinclair Prowse J. considered the argument that silence in earlier reasons for judgment regarding costs is tantamount to an order that there will not be an order for costs. After reviewing the authorities she found that if reasons are silent, by operation of Rule 57(9), there is a presumption that costs will follow the event unless either party objects to the order being framed in that manner, in which case an application for costs should be made to the court. The present Rule 14-1(9) contains the same presumption.

As previously discussed, BC has a true ‘loser pays‘ system which generally requires the loser of a lawsuit to pay the winners costs.  If a Defendant makes a formal settlement offer and defeats the Plaintiff’s lawsuit the Court has the discretion to award double costs.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, refusing to make such an order in circumstances where the formal offer was little more than a walk-away offer.

In last week’s case (Habib v. Jack) the Plaintiff was injured while riding as a passenger in the Defendant’s bus.  The parties agreed on the value of the Plaintiff’s injuries but disagreed on the issue of fault.  Prior to trial ICBC made a formal settlement offer of $1,000.  The Plaintiff rejected this offer, proceeded to trial, and had her claim dismissed.

ICBC was awarded costs and asked the Court to award double costs pursuant to Rule 9-1(5).  Madam Justice Ross refused to do so noting that the offer was ‘nominal’ and that it was not unreasonable for the Plaintiff to have her day in court.  The court provided the following helpful reasons:

[15] The defendants submit that having regard to the factors enumerated in the Rule, the court ought to award double costs. Counsel submits that the offer was not nominal; it gave the plaintiff modest recovery and represented a willingness to compromise that the Rule is meant to foster. The offer was made at a time when the discoveries of both parties were complete and the evidence was known. The plaintiff’s position is that this was a nuisance offer and it cannot be said, without applying hindsight, that it ought to have been accepted.

[16] At the time the offer was made, it was clear that the plaintiff had suffered an injury. There was a dispute with respect to liability. Mr. Jack had limited recollection. The only two witnesses were Ms. Habib and Mr. Jack.

[17] In my view the offer was nominal given Ms. Habib’s injury. I agree with the observations of Burnyeat J. in Martin v Lavigne and Neufeld (Costs), 2010 BCSC 1610 at para. 13, that there are situations in which a nominal offer should have been accepted. However, in my view this is not such a case. It cannot be said that it was clear that the action had little chance of succeeding on the merits. Rather, there was a significant risk that the case would be lost on liability. This risk materialized and the action was lost at trial; however, in the circumstances it was not unreasonable for the plaintiff to reject the offer and proceed to trial.

[18] On balance I have concluded that this is not a case to make an order for double costs as sought by the defendants based upon the offer to settle. In the result, the defendants will have their costs.

Earlier this year the BC Supreme Court released reasons for judgement finding that when a Defendant succeeds in a lawsuit and is awarded costs the order is for their benefit not their insurer.  In short the Court held that ICBC has no subrogated right to costs awards under section 84(1) of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking an opposite view of this issue.

In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus.  She sued the bus driver and bus company but had her claim dismissed at trial.  The Defendant was awarded costs with Madam Justice Ross giving ICBC the benefit of this costs award.  The Court provided the following brief reasons:

In the result, the defendants will have their costs. Under s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) is subrogated to its insured and is entitled to recover the costs to which the insured would be entitled. Accordingly, ICBC is entitled to recover the costs awarded to the defendants.

Given the contradictory recent court findings on this issue I suspect the BC Court of Appeal will be asked to weigh in on the topic of insurers subrogated rights to costs following the successful defence of a lawsuit.

As previously discussed, Section 10 of the Worker’s Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment.  One of most litigated issues with respect to this bar arises when people are in collisions commuting to and from work.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such a scenario.

In this week’s case (Franzke v. Workers’ Compensation Appeal Tribunal) the Plaintiff was injured while driving home from her usual place of employment.  She was employed in the insurance industry.  Her job required her to have a Driver’s Licence and to occasionally work away from the office.

On the day of the collision the Plaintiff left her office early in the face of an expected snow storm.  She took files home with her with an intention of working from home for the balance of the day and depending on road conditions perhaps for some time beyond that.

In the course of her lawsuit the Defendants argued that these circumstances brought the commute within the “course of employment” stripping her of the right to sue.  The matter was put before the Workers Compensation Appeal Tribunal (WCAT) who agreed.  While WCB’s Policy 18 states in part that “the general position is that accidents occurring in the course of travel from the worker’s home to the normal place of employment” is not an activity in the course of employment here the Plaintiff’s intention to work from home was crucial with WCAT finding that “the intention of the worker was given significant weight and was determinative“.

The Plaintiff asked the BC Supreme Court to review this decision arguing that it was patently unreasonable.  Madam Justice Ross disagreed and refused to disrupt WCB’s decision.  In doing so the Court reached the following conclusion:

[132] I have concluded that the Original Decision was not patently unreasonable and that the hearing was fair with no denial of natural justice. In addition, I have concluded that the decision of the Reconsideration Panel to dismiss the application for reconsideration was correct. In the result, the petition is dismissed.

As I’ve discussed on many occasions, there is little credible medical evidence to suggest that a low impact collision cannot result in injury.  The LVI defense fails at trial far more than it succeeds.  That said, there is no denying that a claim for damages can be met with more skepticism if the triggering event is a low impact collision as opposed to a severe crash.  For this reason ICBC and other insurers like to highlight the minimal forces involved when Low Velocity Impact claims proceed to trial.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s claim (Ryan v. Klakowich) the Plaintiff was involved in a 2008 collision.  Fault for the crash was admitted.  The collision involved minimal forces with the defendant testifying that the impact was “like bumping a shopping cart against a counter“.  Despite this, and despite some reliability concerns the trial judge raised with the Plaintiff’s evidence, the Court accepted the Plaintiff sustained real injury.  In assessing non-pecuniary damages at $25,000 Madam Justice Ross provided the following reasons:

[73] Ms. Ryan’s complaints arise from a collision of very low impact, producing minimal damage to her vehicle and none to the defendant’s. Her injuries are said to be soft tissue injuries for which there are no objective indicators. In such circumstances Ms. Ryan’s credibility is of particular importance since the physicians are to large extent dependent upon her subjective reports in reaching their opinions.

[74] I find Ms. Ryan to be a poor historian. It is my impression that she minimized the extent and duration of the injuries she suffered in previous accidents, both in her testimony and in her reports to physicians in preparation for this litigation. She also minimized the significance of the other medical conditions with which she was dealing. It is her testimony that the burden of taking care of her mother did not interfere with her work or with her social life because her other siblings would fill in. However, this was inconsistent with what she told Dr. Anderson. He reported that she was in considerable distress concerning the care of her mother on several occasions, reporting that the disproportionate burden fell upon her and that her siblings were not providing sufficient assistance…

[78] The medical evidence is of limited assistance since the opinions are to a great extent dependent upon Ms. Ryan’s subjective reports. In addition, Dr. Anderson had not treated Ms. Ryan before the 2008 Accident and so had no personal knowledge of Ms. Ryan’s condition prior to the 2008 Accident. Ms. Ryan did not provide Dr. Jung with a full history. Finally, the additional investigations that Dr. Jung and Dr. Bishop recommended have not been undertaken. In the result, there is no medical opinion that bears on the causation of the neurological symptoms Ms. Ryan now complains of in her right arm.

[79] I accept that Ms. Ryan suffered mild to moderate soft tissue injuries to her neck and shoulder girdle in the 2008 Accident. As a consequence, she experienced pain and stiffness in her neck, upper back and shoulder and headaches. I accept that these symptoms have lingered. While it is the case that many, perhaps most people, would not have suffered such injuries in such an accident, I accept that the combination of her previous injuries, scoliosis and osteoporosis would render her more fragile and susceptible of injury…

[83] I award $25,000 in non-pecuniary damages.

When a Bus Driver is involved in an at-fault collision causing injury to the passengers a suit for damages can usually be brought.  What if there is no collision but instead the bus driver makes an abrupt move causing injury to the passengers, can a suit succeed on these facts?  Depending on the circumstances the answer is yes.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this area of the law.

In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus in Burnaby, BC.  The Plaintiff testified that the driver went over a speed bump and that “her seat cushion slid out from under her and she became briefly airborne during which time her neck snapped forward and back“.  The Court ultimately dismissed the lawsuit finding that the Defendant drove the bus appropriately.  Prior to making this finding Madam Justice Ross provided the following useful discussion addressing this area of the law:

[26] The standard of care owed by a transit operator to a passenger was addressed in Day v. Toronto Transportation Commission, [1940] S.C.R. 433. Justice Hudson described the duty as follow:

Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree: 4 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett [(1817) 2 Starkie 37], the rule was stated by Lord Ellenborough, at p. 38, as follows:

Every person who contracts for the conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences.

[27] In this province, Madam Justice Humphries summarized the principles to be applied in Lawson v. B.C. Transit, 2002 BCSC 1438, as follows at paragraph 18:

As set out in Wang v. Harrod, supra, once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

[28] Mr. Justice Berger in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.) noted that:

…this is not a case where negligence has been established. I say that because, though the bus lurched as it started up, it was a lurch that she, as someone who had travelled on the buses for twenty years had experienced in the past. Anyone who travels on the buses must expect that from time to time the movement of the buses will not be smooth and uneventful. Lurches are part of the movement of these buses and something that the people who travel on the buses learn to expect. Accidents do happen. And there are bound to be some accidents on the bus system. And some of them, like this accident, will not give rise to a right to damages.

Madam Justice Ross goes on to cite about a dozen other cases dealing with Bus Passenger injuries in BC making this week’s case a good starting point in researching bus driver liability for injury to passengers.

It is not uncommon for physicians to occasionally prescribe Botox Injections to treat symptoms of pain following motor vehicle collisions.  The Botox itself is not covered by the BC Medical Service Plan and people often turn to ICBC for funding of this expense.  Two recent decisions have addressed whether ICBC is obliged to fund Botox therapy when prescribed by a physician.

In 2008 Mr. Justice Macaulay provided reasons for judgement (Tiessen v. ICBC) finding that Botox is indeed a covered benefit under ICBC’s No-Fault Plan. The Court provided the following reasons:

[]           Counsel for ICBC seeks to impose too high a standard for proving that a recommended treatment is necessary.  I am satisfied that the treatment is necessary in the sense that the plaintiff needs short and long term pain relief for his lower back.  While it is impossible to predict that this particular treatment will succeed, it is nonetheless, on the evidence before me, a necessary physical treatment within the meaning of the section.

[]           There is no evidence to suggest that the proposed cost of the staged treatment is unreasonable.  The fact that the particular treatment is not covered by MSP does not establish that the cost is unreasonable.

[]           I am persuaded that the plaintiff is entitled to a declaration that he is an insured person to be benefited pursuant to Part 7 of the Regulations and a further declaration that he is entitled to receive medical rehabilitative benefits pursuant to the contract of insurance with the defendant under Policy Number 639 DER for the cost of Botox injections as recommended by Dr. Quartly.

Further reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that Botox is a benefit covered under Part 7.

In today’s case (Plensky v. Di Biase) the Plaintiff was injured in a 2004 motor vehicle collision.  A jury awarded the Plaintiff damages including just over $60,000 for the cost of her future medical care.   The court was then asked to reduce the award to take into account the future expenses that were covered directly by the Plaintiff’s Part 7 Benefits to avoid “double recovery”  (You can click here to read more about this topic).  Madam Justice Ross ultimately made a modest deduction to the Jury’s award.  Part of the deduction reflected the cost of future Botox injections which the Court accepted was a responsibility of ICBC’s under the Plaintiff’s Part 7 Benefits.

Today’s case coupled with Mr. Justice Macaulay’s 2008 decision make it clear that Botox can be covered under people’s own policies of ICBC Insurance.

Further to my recent post on this topic, part of a trial lawyer’s job is to convincingly advance their client’s case.  There are limits, however, on the types of statements a lawyer can make to a jury and if these boundaries are overstepped a mistrial may occur.  Today reasons for judgement were published on the BC Supreme Court website discussing the Court’s discretion to order a mistrial when improper statements are made in the course of trial.

In today’s case (Plensky v. Di Biase) the Plaintiff was injured and sued for her damages.  During closing arguments before a Jury the Plaintiff’s lawyer said “I have been carrying the burden (of the Plaintiff’s) file from the time she first walked into my office.  At this point I can hand that burden to you with the hope that she will be restored as much as money can restore her“.

The Defence lawyer objected to this arguing that the statement was made to “appeal to the jury’s sentiment and emotion, improperly interpose counsel in the proceedings and suggest a form of pact between the counsel and the jury“.  The Defence lawyer asked that the Jury be discharged and the verdict be pronounced by Judge alone.  Madam Justice Ross agreed that the statement was in fact inappropriate but chose not to discharge the jury.  In reaching this decision the Court reasoned as follows:

[4]             In such applications, the onus is on the applicant to establish that the misconduct was likely to prejudice the jury, or may have affected a verdict or deprived a party of a fair trial. See Giang v. Clayton, 2005 BCCA 54, 38 B.C.L.R. (4th) 17. The question is whether, with appropriate instructions in the circumstances, the jury will be able to dispel the matters of concern from their minds.

[5]             The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors’ sympathies divert them from this important responsibility. In that regard, see Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46. In that case, at para. 46 the Supreme Court of Canada decision in Hesse v. The Saint John Railway Company (1899), 30 S.C.R. 218 was cited, in which the court stated at 239:

It is perhaps impossible to prevent jurors looking at a case in this way, but at least they ought not to be invited to do so, and such direct resorts or appeals to the feelings and interests of the individual jurymen can only exercise a disturbing or misleading influence.

[6]             In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), the court continued with further commentary with respect to this issue noting at para. 15:

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence . . .

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness . . . requesting a jury to act in a representative capacity will result in a mistrial.

[7]             In Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349, the court noted at para. 37 that the address in that case:

. . . invited the jury to identify and sympathize with the plaintiff. It put [counsel’s] personal and professional life before the jury and invited the jury to identify with his cause.

[8]             With respect to the issue of misconduct and intention, I note that misconduct is not to be limited to deliberate wrongdoing and authority for that is found in Birkan v. Barnes, 69 B.C.L.R. (2d) 132 (C.A.).

[9]             I am mindful of the importance of trial by jury and the plaintiff’s selection of that mode of trial. Such a selection should not be lightly set aside. I am also mindful that the jury deliberations are confidential and if limiting instructions are given, one must take on faith that they will be observed. That consideration makes this decision a very difficult one, however, I have concluded that this was an isolated transgression and that it can be addressed with a strong limiting instruction to the jury that will be given prior to the time that defence counsel commences his closing.