ICBC Law

One of the exceptions to BC’s general rule that ‘costs follow the event‘ is that a party can be ordered to pay their opponents costs relating to a distinct issue at trial.  This was demonstrated in reasons for judgement released last week in the context of an ICBC claim.

In last week’s case (Garcha v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision. Following trial the Plaintiff’s damages were assessed at just over $30,000.  The Plaintiff had sought damages for loss of income although this portion of his claim was largely unsuccessful.  The Defendant applied to be paid a portion of the trial costs.  Mr. Justice Cohen agreed that the Defendant was entitled to this relief as the wage loss claim was “the most contentious item during the litigation“.  In ordering the Plaintiff to pay 30% of the costs the Court provided the following reasons:

[42] I find that the defendant is entitled to an order for an apportionment of costs.

[43] The test for whether or not an apportionment of costs should occur is set out in Sutherland v. The Attorney General of Canada, 2008 BCCA 27:

[31]      The test for the apportionment of costs under Rule 57(15) can be set out as follows:

(1)        the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;

(2)        there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;

(3)        it must be shown that apportionment would effect a just result.

[44] First, I am satisfied that the issue of past income loss is a discrete issue.  I am further satisfied that an apportionment of costs of 70% to the plaintiff and 30% to the defendant, as submitted by the defendant, is fair in the circumstances of this case, given the amount for past income loss awarded to the plaintiff, when compared with his claimed amount; the fact that the plaintiff abandoned his claim for future income loss at the commencement of the trial; and, the inordinate amount of time which had to be spent by the defence prior to the trial to secure proper disclosure of the plaintiff’s business records.  There is no doubt from the chronology of the events preceding the trial that the plaintiff’s failure to provide full and timely document production of his business records had a large impact on the conduct of the proceedings leading up to and during the trial.

I’ve previously written about the important role Part 7 Benefits play in ICBC Injury Claims. In short if you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these the Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received.

This argument can be made by a Defendant in a lawsuit even if the injured person applied for the benefits and ICBC refused to pay them.  Reasons for judgement were released this week by the BC Supreme Court showing this principle of BC Injury Law in action.

In this week’s case (Sauer v. Scales) the Plaintiff was injured in a 2004 BC Car Crash and successfully sued the at fault motorist and was awarded damages of over $300,000 (click here to read my post discussing the trial judgement)

After reasons were pronounced the Defendant’s lawyer brought a motion to reduce a portion of the award as it covered damages for benefits that the Plaintiff could have received from ICBC under his own policy of insurance.  Specifically the motion was brought relying on Section 83 of the Insurance (Vehicle) Act which holds in part that “A person who has a claim for damages…who…is entitled to receive benefits respecting the loss on which the claim is based is deemed to have released the claim to the extent of the benefits”

The Plaintiff argued that this application was an abuse of process because he applied to have the benefits paid from ICBC directly but the adjuster cut him off claiming that “the accident did not cause the injuries“.

As with most ICBC Injury Claims I presume the same adjuster that told this to the Plaintiff was also responsible for the defence of the Plaintiff’s lawsuit against the at fault motorist (click here to read more about this conflict of interest).    The Plaintiff argued that ” the onus is on the defendant to establish that a deduction should be made under s. 83(5) of the Act. …the defendant chose to interpret Part 7 of the Regulation in a manner which initially severely restricted the plaintiff’s claim, and subsequently interpreted his entitlement to include virtually all of the damages for cost of future care awarded to him by the Court.  In addition, the plaintiff says that ICBC ignored requests for particulars in the plaintiff’s Part 7 action, and directed the plaintiff to include Part 7 items in his tort claim.  The plaintiff submits that this is a case where ICBC took an extreme position on the plaintiff’s entitlement to Part 7 benefits, and then resiled from that position for the purpose of seeking a deduction from the judgment equalling the plaintiff’s cost of future care award.”

Ultimately Mr. Justice Cohen agreed with the Defendant and held that ICBC’s refusal to pay for requested Part 7 Benefits under the Plaintiff’s policy of insurance does not prevent the ICBC appointed Defence Lawyer in the tort claim to argue that the benefits should have been paid.  The Court went on to reduce the judgement by $25,000 for monies that could have been received from ICBC as No Fault Benefits.  Mr. Justice Cohen provides a comprehensive summary of this area of law at paragraphs 11-18 of the decision that are worth reviewing in full.

This case goes to show that Part 7 benefits need to be pursued vigorously otherwise one can limit the amount of damages and benefits available after a BC Car Crash.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry that are worth reviewing for anyone involved in an ICBC Claim for damages for accident related Thoracic Outlet Syndrome.

In today’s case (Sauer v. Scales) liability was denied but Mr. Justice Cohen found the defendant 100% at fault for the collision.  In valuing the Plaintiff’s non-pecuniary damages at $135,000 Mr. Justice Cohen found as follows with respect to the severity of the accident related injuries:

I find that the plaintiff’s medical experts not only established the plaintiff’s diagnosis that he suffered from thoracic outlet syndrome, but also that of a multiple crush syndrome… he sustained a serious TMJ injury as a result of the accident, and that he should undertake dental reconstruction to treat this disorder…

[256] In the result, I find, on the whole of the evidence, that the plaintiff has proven to the requisite standard that as a result of the accident he sustained moderate to severe injuries to his eyes, teeth, jaw, neck and back.  I accept Dr. Fry’s opinion, confirmed by the other experts for the plaintiff who opined on this issue, that as a result of the accident the plaintiff has significant musculoskeletal and neurological symptoms with respect to his left arm and that the diagnosis is one of multiple crush syndrome, where he has evidence of cervical spine compression, of neurogenic thoracic outlet syndrome, of cubital tunnel syndrome and of carpal tunnel syndrome.

[257] I also find that the injuries he sustained in the accident and the requirement to take therapy and medication on a continuing basis since the accident to treat those injuries has had a significant impact on the quality of the plaintiff’s life, including sleeping, eating and physical fitness, as well as upon his social and personal relationships.

[258] I am mindful of the evidence that since the accident the plaintiff has experienced varying degrees of improvement in his overall symptoms; that to some limited extent he has been able to return to physical pursuits such as tennis, jogging and skiing; that he has been able to travel on family vacations; and, that during the time he was involved with the affairs of Global Synfrac he frequently commuted to Calgary to attend Board meetings.  I am also mindful of the evidence that his prognosis remains poor with regard to his TMJ disorder and thoracic outlet syndrome, and there remains the possibility of him having to undergo further surgical procedures to address these conditions.  Moreover, he will have to continue taking therapy and medications to treat his ongoing symptoms.

[259] Taking all of the above factors into account, I find that $135,000 is a fair and reasonable sum to award the plaintiff for general damages.

Paragraphs 233-236 of this case will be of particular interest to anyone who has undergone an ‘independent medical exam‘ with Dr. A.I Munro.   Dr. Munro has conducted many of these exams on behalf of ICBC and often disagrees with the diagnosis of Thoracic Outlet Syndrome.  Mr. Justice Cohen held that “no weight should be given to the opinions of Dr. Munro on this issue (the Plaintiff’s Thoracic Outlet Syndrome)”.  In reaching this conclusion extensive portions of Dr. Munro’s cross examination were reproduced which I set out below:

[234] In the report of Dr. A.I. Munro, a specialist in thoracic and cardiac surgery, dated March 9, 2006, he concluded that as a result of the accident the plaintiff sustained a mild soft tissue injury of the neck and that he did not have thoracic outlet syndrome.  He also concluded that the plaintiff had a left ulnar entrapment syndrome which was causing his disability, and that the bilateral carpal tunnel syndrome had recovered, stating that, “only one hand was on the steering wheel so it cannot be due to the MVA.”  He also said that the plaintiff’s disability is associated with numbness and weakness caused by a left ulnar entrapment syndrome plus cervical nerve root pains.  However, despite his experience as a thoracic surgeon, Dr. Munro testified that he may have done one thoracic outlet syndrome surgery between the years 1994 to 2001.  He said that he may have done one at St. Paul’s Hospital, but he was not sure, and otherwise a previous one would have been done at UBC Hospital.  He also testified:

Q         — at VGH?  Mm-hm.  And what type of surgeries were you performing over that period from ‘68 to 1990, if I have the years roughly correct.

A          General thoracic surgery and cardiac surgery, both closed and open heart surgery.

Q         Okay.  And of the — I take it there were other surgeons who performed a similar practice to yours?

A          I suppose all the surgeons had slight variations in their practices.

Q         Mm-hm.  Were any of these surgeons –

A          Some of them were purely thoracic, some of them were purely cardiac, and some were mixed.

Q         Okay.  Were any of the ones that were purely thoracic involved with thoracic outlet syndrome and surgeries on that condition?

A          Early on, no.  Probably I saw most of them until probably Dr. Fry, Dr. Nelems came on staff, and they saw most of the thoracic outlet surgery after that.

Q         And when would that be?

A          I’m not sure of the actual dates.

Q         Was it shortly after –

A          Probably in the — my guess would be the early ’80s, –

…

Q         And prior to 2001 when you were at VGH after Dr. Fry and the other physician you mentioned began to specialize, those cases would be — TOS cases would be sent to them for –

A          Yes.

Q         — assessment at surgery; correct?

A          Yes.

…

Q         Yeah.

A          The second aspect is looking at a specific five-year period and analyzing what cases I had seen during that five-year period.

Q         And what five-year period is this?

A          That was 2002, 3, 4, 5 and 6.

Q         Mm-hm.  Mm-hm.  And — and that — that is where you were giving me these approximate numbers?

A          Correct.

Q         Okay.  So during that period, there were somewhere between 25 to 30 per cent that were involving non-severe neck injuries that — where — that could have been, in your opinion, thoracic outlet syndrome issues?

A          No.  There was a fair percentage of people who had such bizarre symptoms and signs that you couldn’t fit them into any logical medical diagnosis, –

Q         Mm-hm.

A          — often associated with psychiatric disease.

Q         Mm-hm.  But other specialists had assessed them as thoracic outlet syndromes?

A          Yes.

Q         Mm-hm.

A          These were all people who had been sent to me to consider this diagnosis.

Q         Mm-hm.  Now, going back to my question in terms of your — oh, maybe I’ll finish.  In that five-year period, I take it, Doctor, there were people who you did concur with the other physician that the diagnosis was thoracic –

A          In that particular –

Q         — outlet syndrome?

A          — five-year period, no.  In the previous five years, yes.

Q         Okay.  And how many occasions was that, do you recall?

A          In the previous five years, –

Q         Mm-hm.

A          — I think it was two, but I cannot tell you for sure.

Q         Two of approximately 30 per year?  Thirty reports a year?

A          Probably at that time I was seeing less than 30 per year.

Q         Mm-hm.

A          I do not have the exact figures –

Q         Sure.

A          — for that previous –

Q         Okay.

A          — five-year period.

Q         So — but in the last 10 years it would be reports in the order of several hundred reports, and of those several hundred reports you concurred with the other specialists on two occasions that you can recall?

A          Yes.

The short answer is yes and reasons for judgment were released today demonstrating this.

In today’s case (Karran v. Anderson) the Plaintiff was seriously injured when she was struck by the Defendant’s vehicle while she was jogging “against the light in a marked crosswalk“.  As a consequence of the impact the Plaintiff “was thrown fifty-seven feet in the air and landed in the south crosswalk…She suffered an occipital hematoma, a fractured left femur, a dislocated right knee…back and neck injuries as well as extensive bruises and abrasions.”

At the time of the accident the Defendant had a green light and he was not speeding.  The Plaintiff, on the other hand, was jaywalking.  Nonetheless Mr. Justice Cohen of the BC Supreme Court found that the Defendant was partially at fault for this crash.  How can this be?  The reason is the determination of fault in BC Personal Injury Claims (with the exception of intentional torts) is governed under the common law of Negligence.  A person can be found negligent even if they did not brake any statutory law during an accident.  Mr. Justice Cohen summarized this principle concisely stating that “ the authorities establish that the common law duty of care exists notwithstanding statutory rights of way and that a breach of a statutory right of way merely provides evidence in support of a finding of a negligent breach of the common law duty of care”

In today’s case the court made the following findings of fact about how the collision occurred:

I find that the plaintiff jogged across Howe Street against the light in the north crosswalk in front of vehicles that were stopped in the two middle southbound lanes; that the southbound vehicles that were stopped when the plaintiff passed in front of them had the green light; that just before the plaintiff was struck by the truck she glanced to her left looking north up Howe street in the east curb lane; that there was heavy rush hour traffic; that the east curb lane on Howe street was open to southbound traffic; that some of the westbound traffic travelling on Smithe Street had failed to clear the intersection thereby preventing other westbound vehicles from entering the intersection; that the defendant’s speed reached 50 km/h; and, that the defendant braked his vehicle just prior to the collision.

The court found that the Defendant was 25% to blame for this collision because he failed “to take any steps to avoid the accident“.  In coming to this conclusion Mr. Justice Cohen highlighted the following facts:

[65] Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident.  In my opinion, he did.  I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street…

[67]         The defendant was proceeding on a green light and thus had the right of way.  However, I find that the defendant did not keep a proper lookout.  He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street.  I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.

[68]         Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff…

[100] The defendant accelerated from the intersection at the intersection of Howe and Robson Streets to reach 50 km/h and he maintained this speed to virtually the point of impact with the plaintiff.  I agree with the plaintiff that driving at the speed limit in the east curb lane while the vehicles in the middle two lanes were stopped on a green light was not reasonable nor prudent given the traffic conditions at the intersection.

This case contains a lengthy and thorough discussion of the law regarding the duties of motorists and pedestrians in crosswalk accidents and is worth reviewing in full for anyone researching or involved in a liability case dealing with the same.