ICBC Law

As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.

Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.

In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.

ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15] Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16] The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17] The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18] This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery.   Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim.   This is a controlled way to lead helpful evidence from a potentially damaging source.

There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim.  The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees.   Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.

In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk.   The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall.  In landing on the pavement, she hit her head and was briefly unconscious“.

Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision.  Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact.  In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness.  Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case.  In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:

[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…

[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000.  In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

As previously discussed, section 86 of the BC Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.  In other words, if you let someone drive your vehicle and they cause a collision you can be sued to pay the damages.

Usually owners admit they allowed the driver to operate the vehicle.  In these cases there is ‘express consent‘.  Where there is no express agreement the law looks into the circumstances to decide if there was ‘implied consent‘.   Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with this area of law.

In this week’s case (Green v. Pelley) two plaintiffs sustained serious injuries when their vehicle was struck by a vehicle (owned by the Defendant McIvor) and driven by the Defendant Pelley.

The Plaintiff’s sued for damages.   There was no issue that Pelley did not have express consent to drive McIvor’s vehicle.  The Plaintiff’s alleged that there was implied consent.  Mr. Justice Saunders disagreed and dismissed the claim against the Defendant McIvor.  In doing so the Court summarized the legal principles with respect to ‘implied consent‘ as follows:

[39] The test for a finding of implied consent under s. 86, in situations where consent has been given to one person but the vehicle ends up being driven by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must establish that the vehicle owner had both an expectation and willingness that a third party would drive the vehicle.  Both an expectation and willingness must be shown.  One without the other will not suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.

[40] The requirement that an owner have an actual expectation of a third party driving the vehicle is relaxed, where it is clear from the circumstances that consent would have been given, if sought, as a matter of course in the particular circumstances confronting the person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963), [1964] 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662…

[53] The plaintiffs urge me to take a broad view of the concept of consent in light of the legislative intent behind s. 86, which is said to be that of maximizing the availability of compensation for injured parties.  Indeed, Macdonell J. stated in the Bareham decision, at para. 27, that the only public policy reasons to be considered in interpreting s. 86:

. . . are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.  . . .

Bareham, as I have noted, is a case in which consent was found.  In Bareham, the public policy argument addresses the subject of whether the consent had been vitiated by the driver’s illegal use of the vehicle.

[54] The same public policy considerations were cited by the B.C. Court of Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996), [1997] 28 B.C.L.R. (3d) 280 (C.A.), at para. 24, as justifying the legislation’s departure from the common law’s strict approach to vicarious liability.  These same considerations were also cited in Barreiro v. Arana, 2003 BCCA 58, as justifying the statute’s modification of the law of agency.

[55] Godsman, in which the Court of Appeal approved of and restated the “willingness and expectation” test, was decided after Morrison and Bareham.  I do not read Barreiro as having modified the Godsman test in any way.

[56] I find that there is no evidence of Mr. McIvor having consented by implication to Pelley’s operation of the vehicle.  Therefore, as I understand the issue before me, the claim of the plaintiffs against Mr. McIvor based on vicarious liability is to be dismissed.

As previously discussed, if a Plaintiff successfully sues in the BC Supreme Court and is awarded damages under $25,000 (the current monetary limit of the BC Small Claims Court) the Plaintiff will not be entitled to costs unless they had ‘sufficient reason‘ for suing in Supreme Court.  Useful reasons for judgement were released today by the BCSC, New Westminster Registry, addressing this issue after a Part 7 Benefits trial.

In today’s case (Derbyshire v. ICBC) the Plaintiff was injured in a motor vehicle collision.   She was employed as a commercial painter and as a result of the crash became disabled from her own occupation.  She was insured with ICBC who provided one week of disability benefits and then refused to reinstate these.

The Plaintiff’s treating GP and a rheumatologist supported the fact that the Plaintiff was disabled.  ICBC obtained an ‘independent medical examination report‘ from an orthopaedic surgeon who concluded that the Plaintiff “should have been able to have resumed her previous level of activity” within 8 weeks of the crash.

The Plaintiff sued in the Supreme Court and ultimately was successful with Mr. Justice Saunders finding that ICBC was wrong in cutting off the Plaintiff’s rehabiliaiton and disability benefits.  The total value of the Plaintiff’s claim by the time of trial was well below $25,000 however the Court went on to award costs finding that Plaintiffs suing for on-going benefits under Part 7 have sufficient reason to sue in the Suprene Court.   Mr. Justice Saunders provided the following reasons:

I accept what Mr. Cabanos says regarding the apparent, at this point, potentially limited monetary value of the claim being within the jurisdiction of the Provincial Court, but Mr. Milne is quite correct that the test for costs is whether it was appropriate to bring this action and this application in Supreme Court.  In my view, it was appropriate given the indeterminate size of the total benefits that could be granted to the claimant over the entire course of her disability and it was further appropriate with respect to the summary disposition mechanisms that are available in this court, the alternative in Provincial Court only being a full trial.

(IPDATE:  The case discussed in the below post was upheld on Appeal on October 26, 2011)

As previously discussed, victims of injuries sustained in collisions caused by “unidentified motorists” can seek compensation directly from ICBC under section 24 of the Insurance (Vehicle) Act provided that they comply with this section.  One of the requirements of s. 24 is for the claimant to make “all reasonable efforts” to ascertain the identity of the at fault motorist.  One reasonable effort a Plaintiff can take is to advertise for witnesses.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing post accident advertisements and explaining that these are not always necessary to bring a successful s. 24 claim.

In today’s case (Nicholls v. Anderson) the Plaintiff was involved in a single vehicle motorcycle accident in 2005.  He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“.  He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages.  ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill.  Mr. Justice Saunders disagreed and dismissed ICBC’s application.  In doing so the Court provided the following useful reasons about advertisements and s. 24 claims:

[13]         The last step contended by ICBC is one in which the claimant ought reasonably to have taken is the placing of a newspaper advertisement or advertisements. This aspect of ICBC’s argument has been of the greatest concern to me on this application because it is a step that could have been taken at relatively modest cost, and because in this particular case the claimant took absolutely no positive steps aimed at ascertaining the identity of the persons responsible.

[14]         I do not think that this argument can be answered solely by the claimant pointing — as was done in argument — to the fact that the accident did not happen in a well-defined geographic area or one where there was a specific readership of a specific newspaper likely identifiable. In my view, if there was an obligation to place a newspaper advertisement or advertisements, they could have been placed in community newspapers serving the north side of the Fraser in the areas of Mission and Hope and perhaps Maple Ridge, or alternatively, as ICBC argued today, in one or both of our Vancouver daily newspapers which enjoy a readership outside the greater Vancouver area.

[15]         Mr. Nicholls perceived himself in the statement that he gave within days of the accident as having sustained more than a trivial injury. If his only recourse legally were to pursue the tortfeasor, the person responsible for the spill, what steps would he have taken if acting rationally in pursuit of his own interests?  Would he have gone to the extent of placing such newspaper ads?

[16]         In my view, the reality is that there would have been only an extremely remote chance of such a line of enquiry being successful. If there ever was a time when the citizens of this province had a habit of scamming the legal notices printed in the daily or weekly newspapers’ classified sections, that day has long passed. The presumed target for any such advertisement would have been someone who would happen to have been following the truck in question in daylight in the vicinity of the accident scene, who would have seen the diesel oil splashing, would have made mental note of it as something significant, and then would have been able to make note of the truck’s appearance with sufficient particularity to identify the driver. That person, if one existed, would then have to read the advertisement in question. The possibility of all of this is so remote that in my view for the claimant in his position to have undertaken even the modest cost of taking out such an advertisement would have been absurd.

[17]         That is not to say that it would be inappropriate in any case for a claimant injured in a motor vehicle accident to take that step. As I say, the reasonableness of a person’s conduct depends in part on the benefit to be gained if they undertake  a course of action. I would not say, certainly not on this application today, that a person who had suffered a catastrophic injury involving quadriplegia or brain injury or the like could feel free not to take a positive step such as taking out a newspaper advertisement or posting an internet classified advertisement in an attempt to locate a tortfeasor, no matter how remote the chances of that being successful might seem; but in this case, given the claimant’s relatively modest injuries as alleged and as attested to in his statement, I do not think that would have been a reasonable requirement on his part.

This case is interesting because the Court went further and struck the paragraphs of ICBC’s Statement of Defence alleging that the identity of the offending motorist was ascertainable.  The Court cited the New BC Supreme Court principle of “proportionality” in arriving at this decision.   Mr. Justice Saunders provided the following reasons:

[18] So the application is dismissed, and in my view it is appropriate in this case to go further than that and to dispose of the defence. In my view in all likelihood I know as much about the reasonableness of the claimant’s actions, given the evidence that has been presented, as a trial judge would, and so I am able to rule conclusively on that issue. I also acknowledge the points made by counsel for ICBC and counsel for the claimant as to the need to under the new Rules to have regard to proportionality. So, in conjunction with dismissing the application, I rule that paras. 2 and 4 of the statement of defence of ICBC be struck. Those are the paragraphs in which it is alleged that the identity of the driver/owner was ascertainable and that the claimant has not complied with the Act in failing to make all reasonable efforts to ascertain the identity of the unknown driver.

As I’ve previously written, section 24 of the BC Insurance (Vehicle) Act gives the victims of Hit and Run accidents the right to sue ICBC directly in certain circumstances.  There are exceptions and limitations to this right and one such limitation is that a Plaintiff has to give proper notice to ICBC that they intend to claim under section 24 otherwise their right to sue ICBC can be taken away.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In today’s case (Mudrie v. Grove) the Plaintiff was involved in a 2007 rear-end collision.  After the crash the Plaintiff and the driver of the other vehicle exchanged their respective information.  The other driver identified himself as “Donald Grove“.   About a year after the crash the Plaintiff conducted a “pre-court vehicle plate search“.  The search gave rise to information which suggested that “Grove” may have provided inaccurate information about his identity.

The Plaintiff started a lawsuit naming not only Donald Grove but also ICBC as a Defendant under section 24 of the Insurance (Vehicle) Act.  ICBC was named in the event that the identify of the true driver was unknown.  ICBC brought a motion to dismiss the lawsuit against them arguing that in order to sue under section 24 a Plaintiff must provide written notice to ICBC within 6 months after the accident and that the Plaintiff failed to comply with this requirement.  Mr. Justice Saunders agreed and dismissed the lawsyit against ICBC.  In doing so the Court noted as follows:

[43] I conclude on the evidence that the plaintiff’s obligation to provide written notice to ICBC under s. 24(2) did not arise at the time of the accident. However, as I have found, the negative vehicle plate search results reported on June 5, 2008 must have led – quite reasonably – to the plaintiff apprehending the potential for an unidentified driver claim; otherwise, there is no explanation for the writ having been issued with pseudonymous defendants. In the words of the Supreme Court of Canada in Peixeiro, at that point, or very shortly thereafter, the plaintiff could reasonably have discovered that he had a cause of action against ICBC. I therefore find the plaintiff did have that obligation to notify ICBC as soon as reasonably practicable, within days of June 5, 2008.

[44]         The plaintiff argues that constructive notice of the claim was given thereafter on September 4, 2008, when ICBC was contacted to determine if it had any information regarding Mr. Grove. In my view, even if I could overlook the statutory requirement that notice be in writing, this contact was nowhere close to being sufficient to discharge the plaintiff’s obligation. There is no evidence of any indication having been given to ICBC that an unidentified driver claim might be pursued.

[45]         The only notice, written or otherwise, given ICBC in this case was the writ and statement of claim. I see nothing in the statute which precludes the pleadings themselves serving as the required notice under ss. 24(2). The purpose of the notice provision is to provide ICBC with sufficient opportunity to make its own investigation of the other driver’s or owner’s identity:  Stelmock v. I.C.B.C. (1982), 42 B.C.L.R. 145 (S.C.) at para. 10; Goltzman v. McKenzie (1989), 36 B.C.L.R. (2d) 228 (C.A.). Successful identification of the driver or owner will lead to a tort claim, relieving ICBC from direct liability. If those persons are insured by ICBC, it may eventually have to make an indemnity payment on its assureds’ behalf, but may possibly then have the potential of recouping some of its loss through adjustments to those assureds’ future premiums. In the case of an out-of-province driver, ICBC may of course avoid liability altogether. Given the potential for fraud in cases of alleged hit-and-run accidents, notice to ICBC will also enable it to investigate the circumstances of the reported accident to determine if the plaintiff’s claim has merit:  Epp v. Harden Estate (1988), 24 B.C.L.R (2d) 89, 31 C.C.L.I. 229 (B.C.S.C.). These legislative purposes may be fulfilled through ICBC receiving details of an accident through a writ, as opposed to discrete advance notification that a claim will be made. And in my view the writ with its attached statement of claim, in the present case, disclosed sufficient detail that service on ICBC alone would have met the notice requirement, if it had been done in a timely manner.

[46]         This brings us to the real question in this case: whether ICBC received notification of the claim, through the writ, within the time parameters given in the statute. The writ was not served until April 2009, ten months after the negative vehicle plate search. No explanation for this delay has been offered.

[47]         In respect of interpreting the notice requirement, the plaintiff argues that the legislative purpose behind the requirement is the same as that which lies behind the two-month notice requirement to municipalities under s. 286 of the Local Government Act, R.S.B.C. 1996 c. 323: the prevention of prejudice to the defence of a government body. It is argued that this court should direct its inquiry into whether ICBC has been prejudiced by the late notification; the logic of that argument is that ICBC cannot be presumed to have been prejudiced, when the trail left by “Mr. Grove” would already have gone cold by the time the plaintiff ought to have realized this was an unidentified driver case. The notice provisions of the two statutes are, however, entirely different. Under the Local Government Act, there is a blanket requirement that notice of claims falling within the ambit of s. 286 be delivered within two months, but subsection (3) specifically provides that the failure to give notice, or sufficient notice, is not a bar to maintaining an action if the court believes (a) there was reasonable excuse, and (b) the municipality has suffered no prejudice. In contrast, under the Insurance (Vehicle) Act’s s.24, the obligation is to give notice as soon as reasonably practicable, and in any event – meaning, whether reasonably practicable or not – within six months.

[48]         If the prevention of prejudice could be said to be the dominant purpose of the notice requirement, it would appear that the legislature has either deemed there to be prejudice after six months has elapsed, or has otherwise determined, as a matter of policy, that ICBC’s exposure to such claims ought to be capped at that point. To subject that provision to an overarching, implied test involving the finding of real prejudice would be tantamount to rewriting the statute. The most that could be said is that a consideration of prejudice might, in certain circumstances, be implied by the qualifier “reasonably”. But even so, that cannot assist the plaintiff in the present case, when notice was not given to ICBC until long after the six-month period had lapsed.

[49]         ICBC was not notified of this claim within six months of when the plaintiff could reasonably have discovered that he had a cause of action against ICBC. The claim against ICBC is therefore dismissed. The parties are at liberty to make written submissions as to costs.

(Illustration provided courtesy of Artery Studios Inc.)

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages as a result of a 2007 BC motor vehicle collision.

In today’s case (Falati v. Smith) the Plaintiff was injured when he was struck by a vehicle.  He was walking on the sidewalk on Marine Drive in West Vancouver when the Plaintiff’s vehicle mounted the curb, drove across the sidewalk and pinned the plaintiff against a building.

The Plaintiff suffered orthopaedic injuries described as “a crush-type fracture to his left tibia and a fracture to the fibula“.  These injuries required surgical intervention with intermedullary nailing.

The Plaintiff made a reasonably good recovery although he continued to have symptoms of pain by the time of trial.   His orthopaedic surgeon gave the following evidence with respect to prognosis and disability:

At this stage, Mr. Falati has only a mild amount of identifiable impairment in the left leg, ankle and foot. He does have evidence of pain symptoms in the leg and left ankle and left foot. However, he is noted to have essentially near normal motor power function as well as near normal range of motion. As such, his current impairment level is low. Nevertheless, there is an impairment present and the exact diagnosis underlying this impairment remains unclear. As a result, defining the likelihood of this impairment remaining permanent is impossible. It is important to note that disability represents the difference between what an individual is expected to do or required to do, and what they are capable of doing, due to the presence of a physical impairment. Since Mr. Falati still does have some evidence of physical impairment, albeit mild, some element of disability does remain. The probability of such disability remaining on a permanent basis seems very low with respect to the left knee and left tibia specifically. However, with respect to the left ankle, a more clear diagnosis would be required prior to making any estimate of permanence

In assessing his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Saunders reasoned as follows:

Neither of the orthopaedic surgeons whose reports are in evidence, Dr. Penner and Dr. Jando, have expressed an opinion that the plaintiff’s foot pain and resulting limitations are likely to be permanent; Dr. Jando has offered the option of further surgery to remove the hardware. The plaintiff’s general practitioner, Dr. Kates, has pointed to both surgery, and weight loss, as possible means of addressing the complaints of persistent pain. Dr. Kates does use the phrase, “some element of permanent left ankle disability”, but as he goes on to point to the remaining hardware as a possible cause, I do not take him to mean “irreversible”. Although there is some possibility of a permanent disability in the present case, the evidence does not establish this to be a probability. Taking such possibility into account, I award the plaintiff non-pecuniary damages of $85,000.