ICBC Law

Rule 12-5(67) allows the BC Supreme Court to order that one issue “be tried and determined before the others“.

In the personal injury context, where fault is contested, it is not unusual for a Court to agree to determine the issue of fault before valuing the case.  The reason being that if a Defendant is found faultless splitting the issues can save both parties the substantial costs associated with proving the value of the claim.

Interestingly, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing the value of a claim before determining the issue of fault.

In yesterday’s case (Simmavong v. Haddock) the Plaintiff was involved in a 2007 head on collision.  The Plaintiff suffered various injuries and the value of her claim was assessed at just over $332,000 in global damages.  In what must be a very rare set of circumstances, the Court did so prior to the issue of fault being addressed.  The parties apparently consented to this turn of events and unfortunately the judgement does not provide any discussion addressing when such an approach is warranted but does provide the following introductory comments:

[1] This trial concerns the plaintiff’s claim for damages arising from a motor vehicle accident, which occurred on June 24, 2007.

[2] Liability for the accident is denied as there is an action yet to be commenced relating to the plaintiff’s daughter.  The parties have agreed to litigate the claim for the plaintiff’s damages only at this time.

Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, which I summarize in my continued efforts to highlight the ‘reasonable efforts’ requirement for hit and run accident victims.

In last week’s case (Singh v. Clay) the Plaintiff was injured in a handful of collisions.  In one of the incidents the Plaintiff’s vehicle was rear-ended.  Following impact the offending motorist “drove away without stopping, as the Plaintiff exited his vehicle“.  As a result the Plaintiff was unable to take down the offending vehicles licence plate number.

ICBC argued that the Plaintiff did not take reasonable efforts at the scene to identify the driver.  The Plaintiff conceded that he “could have done so but he did not look at the licence plate as he did not expect the driver to drive off as she did“.  Mr. Justice Greyell found this was a reasonable explanation and concluded the Plaintiff complied with his obligations under section 24 of the Insurance (Vehicle) Act.  The Court provided the following useful comments:

[78] In the present case, Mr. Singh might have been able to take down the licence plate number of the offending vehicle if he had done so immediately.  However, he did not expect the vehicle to leave the scene of the accident.  Once it became clear that the vehicle was not going to stop, his wife made an effort to write the number down, but only got two of the letters.  Following the accident Mr. Singh took all reasonable steps to ascertain the identity of the driver.  He spoke to two witnesses, he telephoned ICBC, attended the police, phoned his lawyer to obtain advice as to how to proceed, and, as a result, put up flyers seeking witnesses.

[79] In Leggett the plaintiff’s case was dismissed because the Court found he had made a decision not to pursue his rights at the time of the accident.  In Smoluk the Court distinguishedLeggett stating, at para. 9:

[9]        In my view, the Leggett case is clearly distinguishable from this case because the plaintiff in this action made no decision not to pursue her rights. She was prevented from obtaining more information because of the precipitate departure of the wrongdoer, and in my view the plaintiff acted reasonably in taking down the license plate number which would lead any reasonable person to believe that the identity of the person had been or could easily be ascertained. The fact that she got the number wrong in such circumstances does not indicate unreasonableness.

[80] The facts in Smoluk are similar to those in this case.  The offending driver in that case drove away while the plaintiff was inspecting the damage to his vehicle.  While the driver in Smolukdid get the opportunity to take down a partial plate number Mr. Singh did not.  I find that under the circumstances his expectation the other driver would comply with the law and stop his/her vehicle was a reasonable one.  When the vehicle left the scene as he was getting out of his vehicle, it was too late to get particulars of the licence plate number.  I conclude Mr. Singh acted as a reasonable person would have acted in preserving his rights.

Adding to this site’s public database of BC Thoracic Outlet Syndrome cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TOS Injury with a “mixed” prognosis.

In this week’s case (Singh v. Clay) the Plaintiff was involved in a total of 5 collisions.  He alleged 4 of these caused or aggravated a Thoracic Outlet Injury and sued for damages.  Fault was admitted in all actions.

Mr. Justice Greyell concluded that the Plaintiff did in fact suffer from Thoracic Outlet Syndrome and that the injury was caused, on an indivisible basis, from the collisions.  Damages were assessed on a global basis.  In awarding $65,000 for the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court made the following findings:

[81] Based on the medical reports and testimony of Drs. Keyes and Travlos, I am satisfied the plaintiff suffers from thoracic outlet syndrome which causes him difficulty holding his hands above his head, causes his left arm and shoulder to go numb such that he must lower his arm and “shake” the tingling and numbness out, and that this injury affects him both at work and in his home life as described earlier in this decision.

[82] He is also affected because his injury wakes him several times each night, causing him to be tired the following day.

[83] The plaintiff also suffered low back pain and persistent headaches which lasted for several years after the second accident but which have now cleared up…

[88] I find the prognosis for Mr. Singh is a mixed one.  Dr. Keyes’ diagnosis is a difficult one to understand.  On the one hand he has opined that there is likely some permanent injury to the plaintiff’s neurovascular bundle in the left thoracic outlet space.  On the other hand, he has opined there is no permanent injury or damage of the neurovascular bundle in the left thoracic anatomic space.  Dr. Keyes was clear however Mr. Singh would “almost certainly respond” without surgical intervention and expected that his symptoms would improve “and probably resolve over time”.  Dr. Keyes’ prognosis for the plaintiff’s injuries is “very good to excellent” and he says that his recreational and employment activities would “not be significantly affected over the long term”.  The caveat Dr. Keyes offered to this opinion in the penultimate paragraph was that “repeated injuries to the same areas… would be expected to result in similar symptoms and a more prolonged recovery…”  Mr. Singh was involved in motor vehicle accidents on September 18, 2007 (which he did not tell Dr. Keyes about) and November 1, 2008, and the at-fault accident on March 19, 2007.

[89] At the time of trial Dr. Keyes had not seen the plaintiff for some four years.

[90] Dr. Travlos’s prognosis, based on an assessment made in April 2009 was much more guarded.  As noted above he was of the opinion “there is no real expectation that further treatment is going to magically cure his symptoms.”  Dr. Travlos recommended Mr. Singh commence a structured conditioning program outside the home.  There was no evidence to suggest Mr. Singh has followed Dr. Travlos’s recommendation to engage in a conditioning program outside his home or that he take medication to help relieve his sleeping problems.  Had he done so it is possible these problems would have resolved more quickly than they have.

[91] In my view the injuries suffered by Mr. Singh are more significant than those suffered by the plaintiff in Langley but less serious than those suffered by the plaintiffs in Cimino and Durand.  I assess the plaintiff’s non-pecuniary damages at $65,000.

I’ve written many times about the significant costs a party can be exposed to for being on the losing end of a BC Supreme Court lawsuit.  Reasons for judgement were released today further demonstrating this reality under the New BC Supreme Court Rules.

In today’s case (Chen v. Beltran) the young Plaintiff entered an intersection against a red light on his skateboard.  He was struck by a vehicle operated by the Defendant and sustained injuries.  He sued for damages but his claim was dismissed with the Court finding him entirely at fault for the accident.

Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party.  ICBC relied on this section and requested that their costs of over $75,000 be paid by the Plaintiff’s family.   The Plaintiff opposed arguing that no costs should be awarded.  One of the reasons advanced by the Plaintiff was that such an order would “financially cripple the (plaintiff’s) family“.

Mr. Justice Greyell rejected this argument.  The Court, while disallowing some of the most significant disbursements claimed by the Defendant, did go on to order that the Plaintiff pay the Defendant’s costs.  In rejecting the “financially crippling” argument Mr. Justice Greyell reasoned as follows:

[11] The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life.  His ongoing care will involve significant cost to both his parents.  Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application.  The plaintiff says that an order for costs will financially “cripple” the family.  While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs…

[14]         It is clear based on the above authorities that this Court is unable, on any principled basis, to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[15]         To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper.  It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

It is worth noting that this result should be contrasted with cases decided under Rule 9-1(5) where the Court does have a discretion to consider a party’s financial circumstances following trial where a formal offer of settlement was made.

Today’s case demonstrates the real world expenses that can be associated with losing an ICBC Claim in the BC Supreme Court.  It is vital to gauge these costs and the risks of trial prior to putting a case before a Judge or Jury.

Rule 37B, the BC Supreme Court Rule dealing with formal settlement offers, continues to be shaped by the Courts.  One factor that is not yet firmly established is what effect a “walk away” offer made by a Defendant has after a Plaintiff’s claim is dismissed at trial.

When a party sues for damages in the BC Supreme Court and later decides that their lawsuit is likely going to lose at trial they can discontinue.  If this is done the Defendant is able to seek their costs at the time of discontinuance unless they waive this right.  A common strategy of Defendants when they are confident they will win at trial is to make a formal “walk away” offer where they waive their right to costs if the Plaintiff discontinues.  If the Plaintiff does not take the offer and goes on to lose at trial the Defendant may be entitled to ‘double costs’ which could easily add up to tens of thousands of dollars.  Reasons for judgement were released this week by the BC Supreme Court dealing with a walk away offer.

In this week’s case (Riley v. Riley) the parties were involved in a lawsuit involving the transfer of real-estate between family members.  (although this was not a personal injury case there is no reason why the Court’s reasoning cannot be used in the injury claims context).  Prior to trial the Defendant made a formal offer under Rule 37B for the Plaintiff to walk away from the lawsuit on a ‘no costs‘ basis.  The Plaintiff refused the offer, went to trial where her case was dismissed.  The Defendant then asked the Court to award ‘double costs‘ and Mr. Justice Greyell agreed to do so.  In concluding that this was a fair result the Court provided the following reasons:

[20] In MacKinlay v. MacKinlay Estate, 2008 BCSC 1570, Savage J. also considered the effect of Rule 37B when a nominal offer was made.  The issue was whether double costs should be awarded where the successful defendant had made a nominal offer to settle.  He held, at paras. 34-35:

[34]      While a nominal offer might be described as strategic, it was a strategy aimed at persuading the Plaintiffs to discontinue the proceeding, an outcome that is favourable as compared to the outcome the Plaintiffs obtained at trial.  Such an offer is one of the few tools in the arsenal of a defendant of relatively modest means which might exert pressure on a plaintiff pursuing an unmeritorious claim.

[35]      In this regard, albeit in the context of the former Rule, the Court of Appeal in Kurylo v. Rai 2006 BCCA 176, 53 B.C.L.R. (4th) 214, at ¶ 7 said:

…. When a defendant assesses his position in litigation of any kind he may consider that the plaintiff has no case and if the case goes to trial, will fail.  But the defendant may also be willing to make some minor offer which would carry with it the costs in the hope that the action will go away and that he will not, thereafter, incur large legal bills to establish his legal position that the plaintiff has no case.

[21] I see no logical distinction between a nominal offer and an offer such as that made by the defendant in this case.  The principle is the same.  One party is provided with an offer to settle and if not successful at trial in advancing its position relative to the offer it may be held accountable for costs of pursuing the matter to trial.

[22] The second factor referred to in Rule 37B(6) clearly favours the defendant.  The judgment upheld the position she outlined in the offer to settle.  Had the plaintiff accepted it he would have saved not only his legal costs but also the legal costs he must pay to the defendant as the successful party.

[23] There are no other relevant circumstances which bear on my determination of double costs.  The caution expressed by Hall J.A. in Catalyst Paper Corporation v. Companhia de Navegaçäo Norsul, 2009 BCCA 16, 86 B.C.L.R. (4th) 17, is applicable in this case.  Based on the considerations in the above paragraphs, I conclude the plaintiff shall pay double costs to the defendant.  Those double costs shall commence seven days from the date the offer was made.

As mentioned at the start of this article, the formal offer Rule is still being shaped and the result of a ‘walk away’ offer is still not certain.  To read a case where the Court refused to award double costs where a walk away offer was made you can click here.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B so the issue of the effect of ‘walk away’ offers will continue to be judicially shaped moving forward.

When a personal injury claim is advanced the Plaintiff has the burden to prove what injuries they suffered and that these were caused (or materially contributed to) by the trauma in question.  In proving a case it is common for a Plaintiff to obtain expert opinion evidence from medical doctors to address issues such as diagnosis of injury, prognosis, treatment needs, disability and causation.

One tactic used by personal injury lawyers is to try and limit the scope of the opposing sides expert witness’ opinions.  If a witness wanders outside of their area of expertise then those portions of their opinion become inadmissible.

When addressing the issue of causation a developing area of BC Injury Law is whether a physician can give opinion evidence with respect to the forces necessary to cause a specific injury.  Some argue that this is outside of a medical doctors training and is better left to biomechanical engineers.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an argument.

In today’s case (Pham-Fraser v. Smith) the Plaintiff sustained numerous injuries in a 2006 BC car crash.  The Plaintiff’s vehicle was struck at an intersection when the Defendant entered against a red light.  The issue of fault was admitted focusing the trial on the issue of damages.

In support of her case the Plaintiff called numerous physicians to give expert opinion evidence.  One of these witnesses was Dr. Brian Hunt, a neurological surgeon.  He provided the opinion that the “accident created sufficient deceleration forces to produce damage to (the plaintiff’s) L5 vertebra through abnormal axial-loading but that a biomechanical engineer (would need to) confirm this probability“.

The Defence lawyer argued that Dr. Hunt was simply not qualified to give this opinion and that this opinion was inadmissible.  Mr. Justice Greyell rejected this submission and provided the following useful analysis:

[50] Mr. Killas argued certain aspects of the expert evidence called by the plaintiff were inadmissible and that other expert opinion evidence should be given little or no weight.  In particular the defendants argued I should give little or no weight to Dr. Hunt’s opinion the accident created sufficient forces to produce damage to the L5 vertebral body through abnormal axial loading.  Mr. Killas pointed out Dr. Hunt then qualified this opinion with this remark:  “However a biomechanical engineer will need to confirm this probability”.  Mr. Killas noted Dr. Hunt had not done an investigation into the circumstances of the accident (vehicle speed, etc.) to make his opinion.

[51] Mr. Killas also argued Dr. Hunt’s diagnosis that the plaintiff sustained a brain dysfunction secondary to brain injury was simply based on the reading of Dr. Longridge’s medical report and on an unproven assumption the plaintiff had a lack of awareness of the circumstances of the motor vehicle accident.  Mr. Killas also argued Dr. Hunt’s opinion the plaintiff probably suffered abnormal axial loading on her spinal column during the accident was qualified by Dr. Hunt when he said in his report that “a biomechanical engineer will need to confirm this probability”.

[52] I accept Dr. Hunt’s opinion on both these issues.  There was evidence concerning the plaintiff’s limited recollection of what happened following the accident and I accept Dr. Hunt, given his qualifications and special experience, was well able to offer the opinions he did.

[53] I have ascribed as much weight to Dr. Hunt’s opinion concerning the cause of the plaintiff’s lower back injury as I have on the opinions of the other specialists who testified, including Dr. Schweigel.  Dr. Hunt’s expertise (and that of the others) has been gained through many years treating patients who have been involved in motor vehicle accidents.  He is well qualified to offer the opinion he did.  The fact Dr. Hunt was prepared to defer to the opinion of a biomechanical engineer does not, in my view detract from his expertise in offering his opinion to the court on the cause of the plaintiff’s lumbar spine injury.  I similarly find that the evidence of Dr. Hartzell concerning the forces applied to the plaintiff’s lower spine during the accident is helpful to the court and hence admissible, given his experience and qualifications.  Both Dr. Hunt and Dr. Hartzell, through their long and distinguished medical practices have had experience with persons with spinal injuries.

As I’ve previously written, children can be unpredictable.  Accordingly drivers need to use extra care when passing by children otherwise they can be found liable for an accident in circumstances where their actions may not otherwise be considered careless.  In legalese, the presence of children raises the ‘standard of care‘.  Reasons for judgement were released today discussing this area of law in an unsuccessful personal injury lawsuit.

In today’s case (Chen v. Beltran) the Plaintiff was involved in an unfortunate accident in New Westminster, BC in 2006.  The 11 year old Plaintiff was lying on a skateboard travelling down a steep hill.  The Plaintiff lost control and entered an intersection against a red light.  He was struck by an oncoming motorist and was injured.

The Plaintiff’s lawyer agreed that the Plaintiff was at fault for this accident but argued that the driver was partially at fault as well.  Mr. Justice Greyell disagreed and found the Plaintiff was fully at fault for the incident.  Before dismissing the case, however, Mr. Justice Greyell summarized the standard of care imposed on motorists when driving by children.  The Court stated as follows:

[25] The law to be applied in determining the duty of a driver when there are children in or about the area was set out by Hood J. in Bourne (Guardian ad litem of) v. Anderson, [1997] B.C.J. No. 915, 27 M.V.R. (3d) 63 (S.C.) at paras. 55 and 56:

55 In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

…

The above standard of care has been followed in numerous subsequent decisions:  see for example, Hixon (Guardian ad litem of) v. Roberts, 2004 BCCA 335; Mitchell (Guardian ad litem of) v. James, 2007 BCSC 878; Johnson v. Eyre, 2009 BCSC 1711.

[27] The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident.  When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances.  In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

While this greater standard of care ultimately did not assist the Plaintiff in succeeding in his lawsuit, this case demonstrates that our Courts will place greater scrutiny on the actions of a driver when they are driving by an area where there are children.

We all know that children can be unpredictable.  As such motorists have to take special precaution when driving by pedestrian children.  The standard of what is safe will be stricter in these situations and reasons for judgement were released this week discussing this legal principle.

In this week’s case (Johnson v. Eyre) the 7 year old Plaintiff, who was riding his bike, was struck by the Defendant’s motor vehicle and sustained injuries.  Ultimately the lawsuit was dismissed because the Court found that “(the Defendant) simply could not avoid striking (the Plaintiff)…The collision occurred because the youths turned…into the path of the (defendant) vehicle…(the Defendant) took appropriate evasive action in the little time he had to react.”

Before dismissing the claim, however, Mr. Justice Greyell did a good job summarizing the standard of care motorists should exercise when driving by children.  The below quote is a useful summary of this area of personal injury law:

[15] The plaintiff relies on the following passage in Bourne v. Anderson, 27 M.V.R. (3d) 63 where Hood J. said at para 55:

55        In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

This passage was cited with approval by the Court of Appeal in Hixon v. Roberts, 2004 BCCA 335.