ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a wrist and back injury sustained in a collision.

In last week’s case (Rutter v. Allen) the Plaintiff was involved in a 2006 collision.  The Defendants were found at fault for the rear-end crash which caused about $18,000 in damage to the Plaintiff’s vehicle.

The Plaintiff sustained a left wrist Triangular Fibrocartilage Tear (a tear to the cartilage at the base of the wrist joint) and soft tissue injuries to the low back.  The TFC tear required surgical correction.

The low back pain became chronic and continued to cause discomfort at the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Joyce provided the following reasons:

[26] Mr. Rutter alleges that he sustained an injury to his wrist as a result of the accident, specifically an “ulnar carpal impaction with a tear of the triangular fibrocartilage”. In January 2010, Dr. Perey, an orthopaedic surgeon, operated on Mr. Rutter’s wrist to shorten the ulnar bone, which largely resolved the problem with the wrist, although Mr. Rutter testified that he still had occasional sharp pains in his wrist…

[40] In my view, there is a body of evidence, which I accept that supports the opinions of the medical experts. The evidence as a whole supports a finding, on balance, that the accident was the underlying cause of the problem and that but for this accident, Mr. Rutter would not have developed the wrist problem that was eventually corrected by surgery…

[52] Mr. Rutter has an underlying spondylolisthesis, which is a condition in which the vertebrae are out of proper position, but this was largely asymptomatic prior to the motor vehicle accident.

[53] I find that Mr. Rutter’s suffers chronic back pain that was caused by the accident of December 15, 2006. I find further that it is unlikely that he will return to his pre-accident level of activity, although it is likely that he can achieve some improvement with regular exercise, including core muscle strength training…

[65] Mr. Rutter led a very active life before the accident and was involved in a number of sports, particularly golf and running. His injuries, particularly the back injury, have led to a significant change in lifestyle for Mr. Rutter. Since the accident, Mr. Rutter has had to reduce his sporting activities substantially. He is also curtailed somewhat in his day-to-day activities, including assisting with housework and household maintenance. He has difficulty sleeping and, at times, is more irritable than he was before the accident. Fortunately, Mr. Rutter has been able to maintain his full-time employment despite his symptoms. I am satisfied that Mr. Rutter finds his life today more frustrating and less enjoyable than previously. Mr. Rutter suffers chronic back pain that is likely to continue well into the future, although Dr. le Nobel is of the opinion that if Mr. Rutter engages in an exercise regime that is developed and maintained with the assistance of a physiotherapist and kinesiologist some improvement in his symptoms is probable…

[77] In my view, the chronic low back pain which Mr. Rutter experiences has a more significant impact on his life and the prognosis for significant improvement is not as good as was the case inMawji and Perez. In my view, the authorities cited by Mr. Rutter are more representative of an appropriate range of non-pecuniary damages considering the nature and effect of his injuries. I assess non-pecuniary damages at $65,000.00.

Further to my recent post on this topic, often after serious motor vehicle collisions ICBC sends adjusters out to collect statements from the parties and known witnesses to the event.

When a lawsuit for compensation is brought by an injured party ICBC sometimes does not disclose the witness statements to the Plaintiff on the basis of ‘litigation privilege‘.   Being a monopoly insurer, ICBC investigates claims and our Courts have consistently held that if the statements were obtained during the ‘investigation‘ stage ICBC’s claim of ‘litigation privilege‘ will fail and the documents will have to be disclosed.  Reasons for judgement were released this week with helpful comments addressing this area of the law.

In this week’s case (Sauve v. ICBC) the Plaintiff was injured in 2008 motor vehicle collision.   After the collision ICBC hired an independent adjuster who obtained witness statements and also provided ICBC a report in which she sized up the various witnesses.  In describing the report the adjuster deposed that she “used my expertise and experience as an Insurance Adjuster to describe each of the Witnesses, including their physical appearance, demeanor and presentation. I also provided an analysis as to the likely performance of each witness in court. I further provided analysis of the commonalities between various witness accounts for the purpose of assessing credibility and preparing the case of the Defendant, ICBC should litigation occur”

ICBC provided the Plaintiff with the witness statements but refused to provide the report claiming the protection of litigation privilege.  The Plaintiff brought a motion to force disclosure.  Ultimately Mr. Justice Joyce held that the reports were privileged and ICBC did not have to disclose them to the Plaintiff.  Before reaching this conclusion the Court provided helpful reasons addressing the difficulty ICBC may face in claiming privilege over witness statements obtained in the immediate aftermath of a collision.  Mr. Justice Joyce reasoned as follows:

[34] I turn to the second part of the test: were the documents created for the dominant purpose of assisting the defendant in the conduct of the anticipated litigation by Ms. Sauvé?

[35] Once again in answering that question, it is important to focus on when the reports were created and to consider them separate from any consideration of whether the witness statements and photographs would meet the dominant purpose test. I can certainly accept that the witness statements and photographs may well have come into existence for two purposes:

(1)       to investigate the circumstances of the accident, and

(2)       to assist in the conduct of litigation.

[36] Therefore, whether those documents would satisfy the second part of the test might have been a difficult question to answer. The defendant might not have been able to meet the test for the first group of documents on a balance of probabilities, but that is not the question that I have to decide.

[37] In my view, when deciding whether the reports were prepared for the dominant purpose of litigation I have to consider not only what was known by Mr. Taylor and communicated to Ms. Webber; I also have to consider what Ms. Webber knew when she prepared the reports, as well as the nature of the reports. Ms. Webber has deposed that when she prepared the reports, she believed that the dominant purpose for their creation was litigation. She came to that conclusion being aware of the information that the witnesses could give with respect to the circumstances of the accident. According to Ms. Webber, the reports consist of her descriptions of the witness, her impressions or opinions concerning their credibility and her own analysis of how the evidence of the various witnesses matched or conflicted. While it might be possible that such information might assist ICBC at the investigation stage, I am of the view that any such use of the documents would clearly be secondary to their use in assisting counsel in the conduct of the action. I am, therefore, satisfied that the reports were created for the dominant purpose of litigation and attracted litigation privilege.

In addition to the above this case contains a useful analysis of the law of waiver of privilege and ‘common interest’ privilege and is worth reviewing in full for anyone interested in these topics.

Hearsay evidence is an out of Court statement introduced at trial for the truth of its contents.  In British Columbia hearsay evidence is admissible in certain circumstances.  BC Courts apply a ‘principled exception‘ to the general rule against hearsay evidence in circumstances where there is sufficient ‘necessity and reliability‘.

What happens if a key witness dies before a personal injury claim in BC heads to trial?  Can previously recorded evidence from that witness be introduced under this ‘principled exception‘?  Reasons for judgement were published this week on the BC Supreme Court website dealing with this issue.

In this week’s case (Simon v. Portsmith) the Plaintiff suffered very serious injuries when he was struck by a vehicle as he was walking along a highway in Salmon Arm, British Columbia.

A key question at trial was weather the owner of the vehicle consented to the driver operating the car.  Another important issue was where the Defendant driver lived at the time of the accident.  The owner of the vehicle could have been ‘vicariously liable‘ for the driver’s actions depending on the answers to these questions.

A witness by the name of Mr. Stushnov was expected to give evidence on where the alleged driver was living at the time of the crash.  Prior to trial Mr. Stushnov swore an affidavit setting out his evidence on this point.  The witness died unexpectedly prior to trial.  The Defendant tried to introduce the affidavit as evidence.  The Plaintiff objected.  Mr. Justice Boyce let the evidence in providing the following useful analysis:

[13] In the case at bar, the plaintiff concedes that the evidence is necessary. Mr. Stushnov is no longer available to testify. The issue is whether the evidence meets the threshold reliability test.

[14] The evidence was taken under oath before a lawyer. Mr. Stushnov was not involved with the events giving rise to this claim in any way. There is no suggestion that he had any personal relationship with Mr. Portsmith other than by providing him a place to live for a period of time. There is no suggestion of any reason that he might have to not tell the truth. He had no interest in the outcome of this proceeding. He was an independent witness.

[15] It is of course true that the plaintiff would now have no way to test Mr. Stushnov’s credibility through cross-examination. However, as counsel for the plaintiff on this motion frankly stated, when the matter was before the court on the Rule 18A application, the credibility of Mr. Stushnov was not in issue and was not raised. What was in issue was the credibility of Mrs. Bostock.

[16] Further, as noted by counsel for the defendant, plaintiff’s counsel has known since 2005 what evidence Mr. Stushnov was expected to give. They chose not to interview the witness to test his credibility.

[17] This evidence is clearly important to the defence. In my view, despite the fact that the plaintiff does not have the ability to cross-examine the deponent, which is something that is often the case when resort has to be made to hearsay evidence, the circumstances surrounding the making of the statement provide sufficient safeguards of reliability to justify its admissibility. The affidavit will therefore be received in evidence.