There is a lot to blog about today so I will have to keep these case summaries short. The BC Supreme Court released 3 cases today that may be of interest to people advancing ICBC claims.
The first deals with the choice of forum of where to sue. The Plaintiff was in a collision with a tractor trailer in 2007. The crash happened in Alberta. The Plaintiff lived in BC and the owner of the tractor trailer had a registered business office in BC. The Plaintiff started the lawsuit in BC and the Defendant brought a motion that the case should be dismissed or stayed because the lawsuit should have been started in Alberta.
After summarizing the applicable law the court sided largely with the Defendants finding that:
[27] The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.
[28] I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.
[29] I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.
[30] In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.
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The second case released today dealt with Court Costs. Typically when a case succeeds in Supreme Court the winner is entitled to court ‘costs’. In theory this is to compensate the winner for having to trigger the judicial process to get whats fair.
After an 11 day trial as a result of a car accident the Plaintiff was awarded $81,694 in damages for injuries and loss. In the trial the Plaintiff’s claim for past wage loss and cost of future care were dismissed.
The Defendant brought a motion asking the court to award the defendant ‘costs and disbursements for that portion of the proceedings ralted to the cloaims fr past income loss and cost of future care’ amongst other relief. The motion was brought further to Rules 57(9) which states
Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.
And rule 57(15) which states
The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.
The court granted the motion stating that:
Analysis and Decision
[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated. I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial. I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.
[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful. I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss. In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity. I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial. In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.
[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.
Conclusion
[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson. In addition, the defendant is awarded his costs and disbursements for two days of trial.
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The third case of interest released today dealt with a car accident from 2003 which allegedly caused severe psychological injuries.
The crash occurred at an intersection in Surrey. The Plaintiff was turning left on a green light. The defendant entered the intersection approaching from the Plaintiff’s left. The Defendant had a red light. The accident then occurred. The Defendant was found 90% at fault and the Plaintiff was found 10% at fault for failing the see the defendant’s vehicle which was ‘there to be seen’
The most contentious alleged injuries were brain injury and Dissociative Identity Disorder (DID). The plaintiff did seem to suffer from DID, the question was whether the car crash caused this.
The court made the following findings with respect to injuries:
[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness. The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life. At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future. In the aftermath of the accident, her life has been devastated. She can no longer look after herself or her children. She lives in an assisted living facility. She is separated from her husband. Her future prospects are grim.
[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident. The accident clearly terrified her. Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do. She was told that she had suffered a serious brain injury. This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral. Her tinnitus and dizziness are likely permanent. The prognoses for her TMJ problems are guarded. There is some optimism that her pain disorder will improve given her recent change in medication. Similarly, over time her depression should respond to treatment. Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission. Absent her DID, the plaintiff would now be on the road to recovery. DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.
$150,000 was awarded for non-pecuniary damages (pain and suffering and loss of enjoyment of life)