Government Introduces Bill Retroactively Limiting Disbursements In Injury Claims

Last year BC’s Attorney General introduced court rule changes creating a hard cap on how many experts individuals could present when prosecuting an injury claim in BC Supreme Court.  It was designed to save ICBC money at the expense of people seeking a fair trial.  The rule changes were swiftly struck down as being unconstitutional.

This week the government is at it again.  They have introduced Bill 9 titled the Evidence Amendment Act, 2020 looking to bring in similar restrictions.

Like last year’s unconstitutional rule the bill looks to limit litigants with vehicle injury claims to one expert in fast track cases and no more than three in non fast track cases.  The key difference is the new bill allows the Court to permit “additional experts to be tendered” if there are areas others requiring opinion evidence not covered by other experts and that without additional evidence the applicant “would suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding.“.  The lack of judicial discretion was fatal to last year’s rule and this change will presumably save this bill from suffering the same fate.

Bill 9 goes further however and also looks to restrict disbursements in an arbitrary fashion.  Bill 9 retroactively limits the recovery of necessary expenses that were lawfully, properly and reasonably incurred in full compliance with existing rules.  The Bill gives the Lieutenant Governor in Council the power to cap  the amount of disbursements payable as a percentage of the total amount recovered in an action.  The Government announced they want the percentage to be 5%.

This rule, if implemented, will force people fighting ICBC to not call the evidence they need to prove their case unless they want to be stuck with an unrecoverable bill.  This is a slanted rule designed to favour ICBC.  The rule does not look after the public’s needs and instead favours a corporate institutional litigant.

A constitutional challenge will likely be launched if the government follows through with this ill conceived rule.

The full text of Bill 9 at first reading is as follows:

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$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2015 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection.   The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome.  By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist.  In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

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Indivisible Injuries With Pre and Post “Minor Injury” Crashes

What do BC Courts do with an indivisible injury claim where the injury arose in the pre ‘minor’ injury caps era and was aggravated after the ‘minor’ injury law came into force?

The first case to address this question found that, in line with the reasoning of Bradley v. Groves, the initial tort feasors can be held liable for the whole of the indivisible loss.

In the recent case (Rabbani-Nejad v. Sharma) the Plaintiff was injured in three collisions.   She sued for the first two and liability was admitted.  Both these claims preceded the ‘minor’ injury cap.  The third crash occurred in the ‘minor’ injury cap era and no lawsuit was started.

The Court found all three crashes contributed to some extent to her injuries.  The Court found the first two crashes caused an indivisible injury.  The third crash caused some new injury in addition to aggravating the indivisible injury.  To the extent of the latter the court found the Defendants were liable for the full extent of the losses from the indivisible injuries including the aggravation from the third crash.  In reaching this conclusion Mr. Justice G.C. Weatherill provided the following reasons:

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ICBC Trial Preparation Neglect “Deserves Sanction and Rebuke”

The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.

In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages.  Fault was admitted by the Defendants and the matter was set for a 10 day trial.  The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.

The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy.  The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payable forthwith

The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“.  In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:

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ICBC Changing Counsel at “11th Hour” Not an “Emergent Circumstance” Justifying Short Leave

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, dismissing short leave for three ‘last minute‘ applications.

In the recent case (Agelakis v. Xu) the Plaintiff was injured in a collision and sued for damages. One month before trial ICBC brought in a new defence lawyer.  Two weeks before trial that lawyer sought short leave for three applications, namely for document disclosure; a further examination for discovery of the plaintiff; and removal of the proceedings from fast track litigation.

The Court held that these applications may have been dismissed on the merits however short leave was simply not appropriate as these last minute request would unfairly cause ‘dramatic upheaval‘ to the Plaintiff’s trial preparation efforts.  In dismissing the request for short leave Master Muir provided the following reasons:

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No Weight Given to “Simply Conclusory” Defence Medical Opinion

Adding to this site’s archived posts of judicial criticism of expert witness advocacy or otherwise unsatisforcy expert opinions, reasons for judgement were recently brought to my attention finding that ‘no weight‘ should be attached to an expert that provided a ‘simply conclusory‘ opinion.

In the recent case (Tzotzolis v. Wyman) the Plaintiff was involved in a 2016 rear-end collision.  Following the crash the Plaintiff suffered from persistent lower back pain.  Although the case involved a BC crash ICBC retained a physician based out of Ontario who occasionally flies to BC to provide an independent medical exam.  That physician opined that the persistent back pain the Plaintiff suffered from was not related to the crash which was merely coincidental.  In rejecting this opinion and finding it deserves ‘no weight’ Mr. Justice Saunders provided the following comments:

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Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane.  As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.”  The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane.  In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson provided the following reasons:

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Court of Appeal Upholds Jury Chronic Pain Award Despite Inappropriate Submissions by Counsel

Reasons for judgement were published today by the BC Court of Appeal dismissing an application for a new trial following a jury award in a chronic pain case.

In today’s case (Brown v. Goodacre) the Plaintiff was injured in a rear end collision that the Defendant was liable for.  The crash resulted in chronic pain and a jury awarded the plaintiff $847,000 in total damages.

The Defendant appealed seeking a new trial arguing plaintiff’s counsel made inappropriate submissions during the trial including

(i)       personalizing the case by bringing himself into the opening statement and closing submissions;

(ii)      giving his personal opinion on the issues, including putting his personal stamp of approval on the merits of his client’s case;

(iii)      giving engineering evidence in the guise of a common sense observation; and

(iv)     in one case, quoting a statement from a medical report that was not in evidence at trial.

The Court of Appeal noted that while some of the comments were not appropriate a failure to object during trial coupled with the trial judge’s caution to the jury about many of these comments meant no new trial was warranted.  In reaching this decision the Court of Appeal provided the following reasons:

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Mother Found 50% at Fault For Striking Her Son With Vehicle

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing fault following the somewhat unusual fact pattern of a mother striking her own son with a vehicle.

In today’s case (Pringle v. Pringle) the Court described the circumstances and some of the evidence surrounding the collision as follows:

[2]             The collision took place after midnight, in a roundabout driveway just outside Mr. Pringle’s apartment building. Mrs. Pringle had driven over to speak with Mr. Pringle. Mr. Pringle’s sister, Emily Pringle, accompanied her mother. The visit had not gone well. It ended when Mr. Pringle told his visitors to leave and threatened to call the police. They did as he asked, but Mrs. Pringle accidentally took Mr. Pringle’s keys with her when she left. They met in the driveway a short while later to return the keys.

[3]             Immediately before the collision, Mrs. Pringle was at the wheel of her car with the ignition on. Emily was sitting in the front seat on the passenger side. Mr. Pringle was standing outside the car. Mr. Pringle and Mrs. Pringle were arguing through an open window.

[4]             Mr. Pringle testifies that what happened next was that Mrs. Pringle began to drive away, circling the roundabout, while he was standing on the roadway. Mrs. Pringle was driving angrily and recklessly. When he realized that she was driving back towards him and was not going to veer away, he jumped and was hit by the moving car’s windshield.

The Court found both parties equally liable for the crash.  In faulting both the driver and pedestrian Mr. Justice Gomery provided the following reasons:

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Bus Driver Not Liable For Injuring Passengers By Braking Hard to Avoid Pedestrian

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, dismissing a negligence claim against a bus driver whose hard braking injured several passengers.

In today’s case (Clarkson v Elding) multiple plaintiffs sued for damages following injuries sustained while passengers on a bus.  The Defendant operator “braked suddenly to avoid a collision with a pedestrian who was jaywalking across East Hastings.”  The resulting force of the braking “caused many passengers on the bus, including the plaintiffs, to fall or be slammed against seats and/or other passengers“.

The claims were dismissed with the court finding no negligence in these circumstances.  In reaching this conclusion Madam Justice Horsman provided the following reasons:

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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