Month: March 2018

Court Dismisses "Low Velocity Impact" Collision Claims in Part Based on Forseeability

Written by admin on March 1, 2018. Posted in ICBC LVI (Low Velocity Impact) Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissed claims for injuries from 5 separate collisions.
In today’s case (Greenway-Brown v. Kyung) the Plaintiff was involved in 5 separate collisions and alleged injury. The Court dismissed two of the claims based on liability. Of the remaining 3 the Court found that the Plaintiff did not meet her burden in proving injury. Interestingly, the Court then went even further and noted that as a matter of law it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot. This seems to contradict the reasoning from the BC Court of Appeal and numerous other so-called low velocity impact prosecutions. In any event, Mr. Justice Macintosh provided the following reasons extending the Mustapha reasonsing to low velocity collisions:

[51] Ms. Brown has not established the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude. While the Court in Mustapha recognizes that a defendant must take a plaintiff as it finds him, or her, for purposes of damages, focusing on a person of ordinary fortitude, for the purposes of determining foreseeability, will not be confused with the “eggshell skull” situation, where, as a result of a breach of duty, the damage inflicted proves to be more serious than expected.

[52] Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well. Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis. Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude. In the three accidents, 2, 3, and 5, all of the available objective evidence, including the photographic evidence of the Jeep after several of the accidents, makes it wholly improbable that the Plaintiff suffered damages, or could suffer damages, from the three parking lot episodes.

[53] The Plaintiff’s mental and physical conditions, of which she complains, pre-existed the second accident upon which she sues, and were exacerbated by her obesity and other physical conditions unrelated to the three accidents. A defendant need not put a plaintiff in a position better than his or her position but for the defendant’s conduct. See, Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34–36. For Ms. Brown to receive damages from accidents 2, 3, and 5 would be to offend the principle expressed in Athey.

ICBC Ordered to Pay $250 for "Misguided" Refusal to Pay $15 Fee

Written by admin on March 1, 2018. Posted in BC Supreme Court Costs Cases.

When people hire a lawyer in British Columbia a $15 ‘trust administration fee’ must be paid to the Law Society of BC. Basically a mandatory tax.
When a plaintiff hires a lawyer to resolve a dispute with ICBC this fee needs to be paid. If the Plaintiff is a successful litigant ICBC needs to indemnify this fee as a disbursement. They don’t like to do so. Today, reasons for judgement were published by the BC Supreme Court, Vancouver Registry, (Garayt v. Deneumoustier) with some harsh words for ICBC’s routine ‘misguided’ refusal to accept this disbursement. In ordering the disbursement paid along with a $250 award in further costs Registrar Cameron provided the following reasons:

[6] I agree with these submissions and would add that on numerous occasions on assessments that I have presided over I have advised counsel for the Insurance Corporation of British Columbia, who are retained to defend these motor vehicle related personal injury claims under our provincial automobile insurance program, that unless there is an issue as to whether or not the Plaintiff’s counsel has received a deposit into trust in respect of resolution of the litigation, there is absolutely no justification to put the trust administration fee into issue.

[7] I have said to counsel, who come with instructions to oppose the TAF disbursement that those instructions are simply misguided and the matter ought not to be raised on an assessment unless there is an issue about the deposit being made. There is no such issue in this case.

[8] I have jurisdiction pursuant to Supreme Court Rule 14-1(14) to award costs arising from an improper act or omission. The applicable Rule reads as follows:

Costs arising from improper act or omission

(14) If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

[9] In this case the Plaintiff was put to unnecessary cost to address this objection to the TAF and I am satisfied that it is appropriate pursuant to Rule 14-1(14)(b) to allow an additional amount for costs in recognition of the failure of the Insurance Corporation of British Columbia to abide by the very clear case law not to make TAF an issue unless there is a proper basis for doing so.

[10] Finding that there was no proper basis in this case and that the concession was only made this morning, I allow the Plaintiff an additional $250 in costs.