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Month: June 2009

More on BC Personal Injury Claims and the Duty to Mitigate

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized.

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses.  What this means is a Plaintiff must take reasonable steps to minimize their losses.  If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.
In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision.   Fault was admitted by the driver of the Plaintiff’s vehicle.   The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision.   Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘.  The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided.  A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant.  See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it.  The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen.  Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise.  In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment.  On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries.  The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong.  Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later.  This is not evidence of a person anxious to obtain psychological treatment.  Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2nd medical-legal report) but failed to take any immediate steps in that regard.  The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work.  She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.

ICBC Claims, Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on ICBC Claims, Soft Tissue Injuries and Credibility

Soft tissue injuries without objective signs are some of the most frequently litigated claims.  One of the reasons why is because credibility plays a vital role in these claims and ICBC often challenges the credibility of Plaintiff’s alleging such injuries.
Reasons for judgement were released on Friday by the BC Supreme Court, Vancouver Registry, dealing with just such a claim.  In Friday’s case (Tayler v. Loney) the Plaintiff was involved in a 2005 BC Car Crash.  Her injuries included soft tissue injury to her neck and back.  These injuries unfortunately continued to linger for many years.  By the time of trial the Plaintiff’s pain was ongoing.  ICBC’s response to this was that the Plaintiff was no longer injured and was simply ‘lying to the court’.
Mr. Justice Grauer rejected ICBC’s position and accepted that she indeed did suffer injuries in the car crash which continued to bother her to the time of trial.  Damages of $42,500 were awarded for the Plaintiff’s non-pecuniary loss (pain and suffering).  Since ICBC put the Plaintiff’s credibility squarely in issue the court had to address this head on.  In doing so the court engaged in a thoughtful discussion about credibility in ICBC injury claims where there is no objective sign of injury.  Mr. Justice Grauer summarized and applied this area of law as follows:

[65] While I have found that the plaintiff is in fact experiencing what she says she is experiencing, I also accept the weight of the medical opinion that there is no objective evidence of ongoing soft tissue injury.  In these circumstances, it is helpful to turn for guidance to the authorities to which counsel referred me, always remembering that each case turns on its own unique facts.

[66] In Butler v. Blaylock (7 October 1980), Vancouver Reg. No. B781505 (S.C.), McEachern C.J.S.C. (as he then was) remarked as follows:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by the wrongdoer.  But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[67] Counsel for the defendant relied in particular on the judgment of Taylor J.A. for the Court of Appeal in Maslen v. Rubenstein (8 September 1993), Victoria Reg. No. V01071 (C.A.), where the court was concerned with:

… those post-traumatic phenomena – sometimes identified with and sometimes distinguished from conditions known as “idiopathic pain disorder”, “chronic (or chronic benign) pain syndrome”, “functional overlay” and “somatoform pain disorder” – which involve continued suffering in accident victims after their physical injuries have healed.

[68] At paras. 8-12, Taylor J.A. went on to describe the basic principles applicable to these “difficult cases”:

To meet the onus which lies on the plaintiff in the case of this sort, and thereby avoid the ‘ultimate risk of non-persuasion’, the plaintiff must, in my view, establish that his or her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

If psychological problems exist, or continue, because the plaintiff for some reason wishes  to have them, or does not wish them to end, their existence or continuation must, in my view, be said to have a subjective, or internal, cause.  To show that the cause lies in an unlawful act of the defendant, rather than the plaintiff’s own choice, the plaintiff must negative that alternative.  The resolution of this issue will not involve considerations of mitigation, or lack of mitigation.  To hold otherwise, that is to say to place on the defendant the onus of proving that a plaintiff who suffers from a psychological problem had it within his or her own ability to overcome it, would be to require that the defendant, rather than the plaintiff, bear the onus of proof on the primary issue of causation, and would impose on defendants a heavy and unjustifiable burden.  If the court could not say whether the plaintiff really desired to be free of the psychological problem, the plaintiff would not, in my view, have established his or her case on the critical issue of causation.

Any question of mitigation, or failure to mitigate, arises only after causation has thus been established.

Where the court finds that psychological injury has been suffered as a result of unlawful conduct of the defendant which the plaintiff has not the ability to overcome by his or her own inherent resources, the court must then, if mitigation issues are raised, decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem, or could in future overcome it….  Where appropriate remediable measures would resolve the problem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

Once the principles to be applied are recognized, the rest is a matter for the fact-finder to determine on the basis of the evidence in the case, and it is for this reason that I find little guidance in many of the decisions cited.

[69] Plaintiff’s counsel relied heavily on the judgment of Spencer J. In Netter v. Baas (14 February 1995), Vancouver Reg. No. B930557 (S.C.), where the learned judge commented as follows:

Over the ensuing 33 months, no doctors save one, has been able to find a satisfactory objective cause for [the plaintiff’s] continuing pain related to this accident.  All the doctors who filed reports agree that he suffered soft tissue injury and resulting pain, but none explains why the pain should have been so severe and lasted so long.  This is the classic case of the plaintiff without objective symptoms who claims an almost total disability from his former physical occupations….

Such cases invite skepticism on the part of the defendant who is asked to pay for such an extreme result.  But this is a plaintiff who claims a formerly very physical lifestyle in the outdoors.  Although he worked in a sawmill in town for the year preceding the accident, much of his life to age 37 had been spent outdoors as a driller-blaster, a prospector and part-time farmer.  His hobbies involve the outdoors too, camping, canoeing, hiking and fishing.  Some of the doctors who examined him remarked upon his strength and build.  Would such a person willingly abandon the lifestyle he had previously embraced for the sake of the chance of an exaggerated accident claim?  There are cases where plaintiffs have done that but generally there is evidence from which that can be determined.  No evidence was called to challenge the accuracy of this evidence about his previous lifestyle.

[70] Turning to the present case, there is, as I have noted, no doubt that the plaintiff suffered soft tissue injuries to her neck, shoulders, upper and lower back, causing pain, headaches and disability.  I have also found that although she genuinely continues to experience pain and disability, there is no objective evidence of continuing injury.  There is no muscle-wasting, atrophy or limitation of motion, and she has been observed to be capable of spontaneous movements inconsistent with continuing physical injury.

[71] What, then, is the explanation for the delay in the plaintiff’s recovery?  On the evidence before me, I conclude that the answer lies in a combination of factors, identified by both Dr. Yuzak and Dr. Teal, although in different ways.  Dr. Teal described it as a psychological predisposition to the effects of trauma, noting her five previous motor vehicle accidents, and her profession.  Dr. Yuzak referred to the three complicating factors of her five previous accidents, her status as a health practitioner, and an environment that was not conducive to healing.  I find that all of these have played a part, and explain why the plaintiff has not recovered as one might otherwise have expected.

[72] I do not consider that this psychological and circumstantial predisposition has a subjective, or internal, cause in the sense of being the plaintiff’s own choice, as discussed in the Maslencase.  Rather, it is the effect of the defendant’s unlawful conduct upon the plaintiff’s pre-existing state that has resulted in the circumstances in which the plaintiff now finds herself, subject to the issue of mitigation.  I do not accept that the stresses in the plaintiff’s life since the accident constitute a novus actus interveniens, as submitted by the defendant.  Those stresses are of the sort that many people experience, and but for her injuries, would not in my view have caused the plaintiff any loss.

[73] Accordingly, I find that the plaintiff has established that her ongoing state of experiencing pain and disability was caused by the defendant’s negligence.

Can a BC Resident Injured Abroad Sue for Damages in British Columbia?

Written by admin on . Posted in Civil Procedure, Uncategorized. 55 Comments on Can a BC Resident Injured Abroad Sue for Damages in British Columbia?

The answer is contained in the Court Jurisdiction and Proceedings Transfer Act and today reasons for Judgement were released by the BC Supreme Court, New Westminster Registry, dealing with this issue.
In today’s case (Roed v. Scheffler) the Plaintiff was injured on June 25, 2006 in Washington State as a result of the alleged negligence of 2 Washington State Residents or in the alternative John Doe or ICBC pursuant to the Insurance (Vehicle) Act’s unidentified motorist provisions.
The Plaintiff, a BC Resident, brought her tort claim for damages in the BC Supreme Court.  The defendants challenged the courts jurisdiction to hear the case a brought a motion to dismiss the lawsuit.
Madam Justice Bruce of the BC Supreme Court granted the defendants motion and in staying the lawsuit the court summarized and applied the law as follows:
[38] Certainly the fact Ms. Roed continued to suffer from her injuries in British Columbia and sought treatment here are “facts upon which the proceeding against the [defendants] is based.” Clearly, the continuing harm caused by the negligence of the defendants will form a significant part of Ms. Roed’s claim for non-pecuniary damages.

[39] Are these connections to British Columbia sufficient to meet the real and substantial connection test? The only similar case cited by Ms. Roed where the court assumed jurisdiction isMuscutt. However, based on the discussion in that case, it is doubtful that the Ontario Court of Appeal would have taken jurisdiction on the facts of the case before me. In particular, Sharpe J.A. found that the nature and extent of the damages suffered by the plaintiff within the jurisdiction was a factor and that, unless it was significant, the court should decline jurisdiction: Muscutt at para. 79. In this case, apart from providing a list of medical practitioners she has seen, Ms. Roed does not describe the nature of her injuries or the treatment she has undergone. Further, Ms. Roed deposes that she has suffered a loss of income but does not quantify it.

[40] There are other factors that were found significant in Muscutt that are missing in this case:

1.         The defendants were engaged in business activities that involved an inherent risk of harm to extra-provincial parties. The plaintiff was struck by a commercial vehicle and this vehicle was subsequently struck by an ambulance. The defendants were apparently insured against suits in all Canadian provinces.

2.         The accident occurred in another Canadian province where the enforcement and recognition of an Ontario judgment would not be an issue. In addition, fairness to the defendant is not a concern because the same test of real and substantial connection applies throughout the country. For this reason, Sharpe J. A. concluded that there is generally a more lenient approach to assuming jurisdiction in interprovincial cases as opposed to international actions: Muscutt at paras. 95-99.

[41] In contrast, cases involving defendants from other countries pose more difficult jurisdictional issues. Because enforcement of the judgment in the foreign jurisdiction is a factor to consider in the real and substantial connection test, the approach to jurisdiction taken by the foreign country when the connecting factor is the location of damages is a relevant concern. Of significance to the case at hand, Sharpe J.A. refers to the law in the United States on this issue at para. 105 of Muscutt:

By contrast, in other countries, it appears that damage sustained within the jurisdiction is only accepted as a basis for assumed jurisdiction in certain limited circumstances. As discussed above, in the United States, the minimum contacts doctrine requires an act or conduct on the part of the defendant that amounts to personal subjection to the jurisdiction. Without more, damage sustained in the jurisdiction does not satisfy the doctrine.

[42] The constitutional limits on the reach of provincial legislation were expressly addressed in Muscutt by incorporating into the real and substantial connection test the concepts of fairness (toward the foreign defendant) and jurisdictional restraint in the application of the test. While the language of s. 3(e) of the Court Jurisdiction and Proceedings Transfer Act does not appear to expressly incorporate these concepts, the court must interpret and apply this provision consistent with the constitutional limits on provincial legislation both inter-provincially and internationally. The discussion contained in Muscutt underlines the risks inherent in a decision to take jurisdiction without due consideration of the international aspects of the proceedings. Specifically, if the court takes jurisdiction based upon a broad application of the test, and one inconsistent with the laws in the foreign jurisdiction, the judgment may not be enforceable in the foreign jurisdiction where the defendant resides.

[43] Turning to the facts of the case before me, I find the plaintiff has failed to satisfy the test for territorial competence articulated in s. 3 (e) of the Act. I find the fact that the plaintiff continues to suffer damages in British Columbia insufficient to establish a real and substantial connection on its own.  These damages are suffered in British Columbia purely as a result of the plaintiff’s residence here. To find a real and substantial connection based on these facts would be to effectively base jurisdiction entirely on the plaintiff’s residence. As set out above, it is well established that a plaintiff’s residence is not sufficient grounds for a territorial competence.

[44] In my view, the reference to “damages” as a factor favouring jurisdiction simpliciter in Jordan and the test articulated in Morguard are directed at the place in which the injury actually occurs rather than the place where the plaintiff continues to experience pain and suffering or economic loss. While the latter circumstances are important, there must be something more to establish a real and substantial connection between BC and the facts upon which the action is based.

[45] This not a situation where the competing jurisdiction is another Canadian province in which case a more lenient standard may apply. Comity requires the court to consider the standards of jurisdiction, recognition and enforcement that prevail in the foreign state when applying the real and substantial connection test.

CONCLUSION

[46] For these reasons, I find the Supreme Court of British Columbia lacks territorial competence over the defendant Ms. Scheffler. The plaintiff’s action against Ms. Scheffler is stayed pursuant to Rule 14(6)(a).

[47] Ms. Scheffler is entitled to party and party costs at scale B.

BC Injury Claims, Expert Evidence and The Duty to the Court

Written by admin on . Posted in Civil Procedure, ICBC Ankle Injury Cases, ICBC Knee Injury Cases, Uncategorized.

One of the Rules regarding the conduct of expert witnesses in the BC Supreme Court is that they owe a duty to the court to be ‘independent’ and ‘unbiased’ in their opinions.  If experts fail to discharge this duty their evidence can be given little weight or even held inadmissible.
Reasons for judgement were released today by the BC Supreme Court demonstrating this principle of law.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a 2005 motorcycle accident when a left turning driver proceeded in front of the Plaintiff in an intersection in Maple Ridge, BC.  The defendant was found fully liable for this collision (the case contains a good discussion of the duties of left turning motorists and is worth reviewing for anyone interested in this area of the law).
The Plaintiff suffered significant fractures of his tibia and fibula which required surgical intervention.  Damages of over $560,000 were awarded including $125,000 for non-pecuniary damages (pain and suffering) for the injuries which were summarized by Madam Justice Allan as follows:

[41] Mr. Rizzolo`s altered position, arising from the Accident caused by the defendant’s negligence, is characterized by continuing pain, changed mood, loss of ability to work effectively and happily, and a much-reduced capacity to engage in recreational sports.  He must take pain killers and anti-inflammatories although they upset his stomach, requiring him to take additional medication.

[42] At present, Mr. Rizzolo experiences constant pain in his left ankle, which is exacerbated by his work activities.  His left foot swells and he experiences occasional pain in his left knee.  He limps when he is tired or in severe pain.  He takes the following medication: Advil once or twice a week for pain management; Celebrex, an anti-inflammatory, daily; and amitriptylene, an antidepressant, twice a week to help him sleep.  He receives periodic cortisone injections from Dr. Dhawan.

[43] Mr. Rizzolo’s injuries are permanent and they affect his entire life – his job, his recreational and family life, and his sense of well-being.  I do not find that he exaggerated his symptoms and he is highly motivated to be as active as possible.

In advancing his claim the Plaintiff called evidence of an expert witness, an occupational therapist, who had conducted a functional capacity evaluation of the Plaintiff to assist the court in determining a fair award for cost of future care.  The expert employed a ‘unique motion capture system known as the Functional Assessment of Biomechanics System [FAB] to measure biomechanical forces.’  In cross examination evidence came out that this expert was ‘an inventor of FAB‘.  Having this fact revealed in cross examination (as opposed to being revealed up front) appaears to have caused the presiding judge to reject all the evidence of this expert.

In rejecting the evidence of this occupational therapist Madam Justice Allan summarized and applied the law of objectivity of expert witnesses as follows:

[104] In R. v. Mohan, [1994] 2 S.C.R. 9, the Court reiterated that expert witnesses have duties and responsibilities.  In particular, an expert witness is expected to provide an independent, unbiased opinion that is adequately researched and falls within his or her ambit of experience.

[105] I consider Mr. McNeil’s failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour.  As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue.  To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time.   It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

[106] I do not fault counsel for the plaintiff as I accept Mr. Kazimirski’s statement that he was unaware of Mr. McNeil’s association with Biosyn before Mr. Joudrey’s cross-examination.  While the plaintiff will be entitled to his costs in the result, he may not claim any costs relating to Mr. McNeil’s reports or attendance in court.  Counsel may address the issue of whether the defence is entitled to costs for two days of trial.

$70,000 Non-Pecuniary Damages Awarded for Patellafemoral Pain Syndrome

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 60 Comments on $70,000 Non-Pecuniary Damages Awarded for Patellafemoral Pain Syndrome

Reasons for judgment were released yesterday (Fortin v. Cousins) by the BC Supreme Court awarding a Plaintiff just over $300,000 in damages as a result of a 2004 BC Car Crash.
The Plaintiff’s main injury involved his knees and was described by his orthopaedic surgeon as follows:
In the motor vehicle accident of March 28, 2004, Mr. Fortin’s principal injury for which there are ongoing symptoms is contusion of the right and left knees.  It is the writer’s opinion that Mr. Fortin must have sustained anterior blunt trauma to the right and left knees.  He presents with ongoing symptoms consistent with patellofemoral degeneration.

Currently, the discomfort in the right and left knees related to presumed chondromalacia patellae (post traumatic), is not impairing Mr. Fortin in his work.  He obviously is very happy about his present employment.  He has aspirations to, at some time, own his own company and not have to do hands on work.  It is the writer’s opinion that if Mr. Fortin continues in his current occupation long term as a pipefitter, he will experience progressive problems with the right and left knee.

I reviewed with Mr. Fortin the job requirements of a pipefitter in stainless steel.  The requirements are obviously quite rigorous and all his co-workers have musculoskeletal complaints related to the occupation.

The writer does not anticipate there will be spontaneous improvement in the complaints referable to the right and left knee.  Currently, Mr. Fortin is following instructions with regard to the protection of his knees throughout the course of his activities as a pipefitter.

The long term prognosis is guarded if Mr. Fortin remains in precisely his current role as a pipefitter.  One could anticipate that in 10 to 20 years in this particular occupation, he might become disabled for (sic) continuing on.  At the present time there are no operative interventions which would prolong the life of either the right or the left knee.  Mr. Fortin is already making plans to attempt to advance to a supervisory position and eventually, to be an independent contractor of a pipefitting company.  Were Mr. Fortin to follow this career path, it is in the writer’s opinion that his knees would not be a barrier to his future employment.

In valuing the Plaintiff’s non-pecuniary damages (pain and suffering) at $70,000 Mr. Justice Harvey noted the following:

49] The purpose of non-pecuniary damage awards is “to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at ¶134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 260-265; and Kuskis v. Hon Tin, 2008 BCSC 862 at ¶135.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as guides to assist the court in arriving at an award that is just and fair to both parties: Kuskis at ¶136.

[50] Russell J. discussed this process in Hoang v. Smith Industries Ltd. et al., 2009 BCSC 275 at ¶33:

There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.))

[51] Here, Mr. Fortin has suffered significant injuries as a result of a horrific accident.  Happily, with the exception of the problem with his knees, which is permanent, his other complaints resolved over time.  Approximately one year following the accident, Mr. Fortin’s other injuries had resolved and no longer were interfering with either his employment or his enjoyment of life.

[52] His knee symptoms, although mild at present, will create ongoing problems for him both in his vocational and recreational pursuits.  The more he is obliged to work “on the tools”, the greater the interference with both.

[53] Counsel for the plaintiff suggests an award of $90,000 to $100,000 for non-pecuniary loss.  Counsel for the defendant distinguishes the authorities relied upon for the plaintiff and suggests, instead, a range of $30,000 to $45,000, noting, amongst other things, that there has been no surgery to the plaintiff’s knees nor is it anticipated that such will occur in the future.

[54] Both counsel cited Gernitz v. Mowat, 1992 CarswellBC 2460 (S.C.) [Gernitz], presumably because the facts there were remarkably similar to the facts in this case but for the plaintiff’s age.  In Gernitz, the award for non-pecuniary loss was $35,000.  Counsel agreed that grossing up the award from 1992 to present day value results in an award of approximately $47,000.

[55] The major distinguishing factor in Gernitz was the age of the plaintiff who was 56 at the time of trial.  Here the plaintiff is 27 and will be subject to a much longer period of pain and restriction in his social pursuits.  Accordingly, having regard to all of the authorities cited by counsel on the question of non-pecuniary damages, I award the sum of $70,000 under this heading of loss.

More on BC Hit and Run Accidents

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 54 Comments on More on BC Hit and Run Accidents

I’ve previously posted that victims of Hit and Run accidents in BC can make a claim directly against ICBC in tort in certain circumstnaces under Section 24 of the Insurance (Vehicle) Act
Section 24 has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.
Reasons for judgement were released today addressing a victim’s obligations to make ‘reasonable efforts’ to identify the driver/owner of offending vehicles in s. 24 ICBC hit and run claims.
In today’s case (Fan v. ICBC) the Plaintiff was injured in a BC Car Crash.  She failed to identify the at fault motorist and brough a claim direclty against ICBC for her pain and suffering and other losses in tort. The Plaintiff’s case was dismissed for failing to take reasonable efforts to identify the at fault motorist.  In dismissing the claim Mr. Justice Curtis explained the duty of motorists involved in s. 24 hit and run claims to make ‘reasonalbe efforts’ as follows:

[20] The British Columbia Court of Appeal considered what was then s. 23 of the Insurance (Motor Vehicle) Act in the case of Leggett v. Insurance Corporation of British Columbia, [1992] B.C.J. No. 2048.  In that case, a man whose car was rear ended spoke to the driver who hit him and both agreed each would look after his own damage.  The man did not bother to obtain the name of the driver or owner of the vehicle because he did not plan to make any claim.  He later sought to recover damages for injury from the Insurance Corporation of British Columbia.

[21] Taylor J.A. in delivering the Reasons of the Court of Appeal, dismissing the claim, held at paras. 7 – 13 of the Reasons:

Here the trial judge was of the view that Mr. Leggett’s ignorance of his injury until the following day made it reasonable that he would not until then make any effort to obtain identification particulars. The judge found that the efforts which Mr. Leggett thereafter made to trace the owner and driver were “reasonable” for the purpose of Section 23(5).

I find myself unable, with respect, entirely to agree with the approach taken by the trial judge.

The section provides a means by which a person who has suffered injury or property damage in a motor vehicle accident may obtain compensation from the government insurer even though the driver said to be at fault, and the owner of the vehicle which was being driven by that person, are insured in another jurisdiction or not insured at all, even though the corporation will, in any event, be unable to look to the other driver for assistance in resisting the claim, and even though the corporation will be unable to obtain reimbursement in the event the other driver is uninsured or there has been a policy breach, or to obtain contribution by way of increased premiums through forfeiture of the other party’s ‘safe driving’ discount. As the trial judge recognized, protection against fraudulent claims is only one of the purposes of the requirement that the claimant show inability to identify the other driver and owner as a condition of being able to claim under the section. In my view the overall purpose of the section is to limit the exposure of the corporation to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be their own interests, and which, by virtue of the section, become the interests of the corporation.

The corporation’s exposure under the section is limited to claims brought by those who could not have ascertained the identity of the parties responsible. It does not, in my view, extend to claims by those who have chosen not to do so.

I do not think the words “not ascertainable” should be strictly interpreted, so as to mean “could not possibly have been ascertained”. I think they are to be interpreted with reference to subsection (5) so as to mean “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them”. Where a person knows that he or she has been involved in a motor vehicle accident, but refrains even from recording the licence number of the other vehicle, when that number is visible and the claimant could, had he or she wished, reasonably have recorded it, such a claimant must, in my view, find it particularly difficult, and probably impossible, to establish that he or she made all reasonable efforts to discover the identity of the owner and driver of that vehicle for the purposes of the section.

The test seems to me to be subjective in the sense that the claimant must know that the vehicle has been in an accident and must have been in such a position and condition that it would be reasonable for the claimant to discover and record the appropriate information. But the claimant cannot be heard to say: “I acted reasonably in not taking the trouble to find out”.

I think that in essence the test is that which was formulated by Hinkson, L.J.S.C. (as he then was) in King et al v. A.G. (B.C.) (1968), 66 W.W.R. 223 (B.C.S.C.), followingRossiter v. Chaisson, [1950] O.W.N. 265 (Ont. H.C.). In the King case, which was decided under the then Section 108 of the Motor Vehicle Act, R.S.B.C. 1960 Chapter 253, the judge (at p. 226) held the appropriate test to be whether the claimants had “pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances” had there been no such provision. In order to accommodate the current statutory requirement in the present context, I would add, after the words “would have done in like circumstances”, the words “if the claimant intended to pursue any right of action which he or she might have arising out of the accident”.

[22] In the case of Johal v. Insurance Corporation of British Columbia and John Doe, Mr. Johal was struck by a car while walking across a street.  The driver got out of his vehicle and asked Mr. Johal how he was, but Mr. Johal, having been traumatized by the collision did not think to ask for the driver’s identity.  When the ambulance arrived, he said he felt fine and took a taxi.  The next morning his left knee was swollen and he realized he had been hurt.  Two days after the accident, he telephoned ICBC and the police.  The police told him he had to report in person which he did 12 days after the collision.  About six weeks after the accident, he advertised for witnesses in the information wanted section of a small neighbourhood paper.

[23] Esson C.J.C. as he then was, in dismissing Mr. Johal’s claims ruled as follows:

… I do not think that the plaintiff’s action is precluded by his failure to do more than he did on the Saturday evening. Although he may not have been in “shock” in a technical sense, it is understandable that he was in some state of confusion and, bearing in mind that he then believed he had not been injured, I would not hold against him his failure to get information at that time.

But, by the next morning, the plaintiff was aware that he was suffering from an injury. He did nothing until the following day. His conduct in telephoning I.C.B.C. that day and giving a full written report within days thereafter was reasonable enough, but only in a most indirect way can it be described as an effort to ascertain the identity of the owner or driver. A timely report to the police would have been more in point; to defer that step for a further ten days was less than reasonable. The advertisement in the personal column was so belated and in an organ of such limited circulation as not to be reasonable. There is no evidence of any attempt to track down the ambulance crew or of any effort to find witnesses at the location. The test which the plaintiff must meet is to satisfy the court that he made “all reasonable efforts”. In a case, such as this, where there is no suggestion of fraud, I would regard “reasonable” as the fundamental element of the test. It should not be made so exacting that it cannot be met. But, on the facts proved here, I cannot be satisfied that the plaintiff has met the test.

[24] The wording of the section itself and previous decisions clearly establish that the onus is on Ms. Fan to establish that she made all reasonable efforts to establish the identity of the owner and driver.  (Nelson v. Insurance Corporation of British Columbia, 2003 BCSC 121, paras. 17 and 18):

On the evidence before me, I am not satisfied that “all reasonable efforts have been made … to ascertain the identity of the unknown owner and driver …”

[25] Firstly, Ms. Fan’s evidence about what happened at the scene is contradictory.  Her trial evidence was that another vehicle parked between her and the one that struck her which combined with the dark, prevented her from seeing the license plate while she was walking toward it.  Previous statements she gave suggest there was only one vehicle.  At trial, she testified she spoke to the second man and perhaps the driver did not speak English.  In her statement to ICBC three weeks after the accident, she said, “The other driver said that his car is ok ….  He asked  me what happened to me ….”  Ms. Fan’s evidence is not sufficiently reliable for me to determine what actually occurred and on that basis to decide whether her actions at the scene were reasonable or not.

[26] Secondly, even if Ms. Fan’s attempts at the scene, such as they were, were reasonable, her attempts to identify the owner and driver thereafter were not.  When she spoke to the police at the time she mistakenly believed the accident took place on United Boulevard.  When she spoke to the police, they told her to report the matter to ICBC.  It was clear at that point the police were not going to be investigating who had hit her.  Making a sign to post a month later then not putting it out because it was raining was no effort at all.  Nor was placing advertisements in theVancouver Sun and Province three months later, a genuine or reasonable effort.  Driving around looking for the car 15 minutes at a time for a couple of weeks following the collision, assuming that was done is in the absence of other reasonable steps is not sufficient.

[27] Patricia Fan has failed to prove that she has complied with the requirements of s. 24(5) of the Insurance (Vehicle) Act and is therefore not entitled to claim damages against the Insurance Corporation of British Columbia directly under s. 24.  The claim against the Insurance Corporation of British Columbia is dismissed.