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Can a Defendant Force a Case Into Rule 68?

Written by admin on . Posted in Civil Procedure, Uncategorized. 53 Comments on Can a Defendant Force a Case Into Rule 68?


Interesting reasons were released yesterday by the BC Supreme Court, Vancouver Registry, dealing with a unique issue; can a Defendant force a case into Rule 68 against the Plaintiff’s wishes?
By way of brief background Rule 68 is the ‘proportionality‘ rule and is mandatory for all injury cases under $100,000.
In British Columbia Plaintiff’s don’t need to plead the value of their claim.  Ultimately only the Plaintiff knows what final number they will be seeking at trial and this information does not have to be shared with the Defendant ahead of time.  Appreciating this, can a Plaintiff simply defeat a Defence application to put a case into Rule 68 by claiming he will seek more than $100,000 in total damages at trial?
In today’s case (Singleton v. O’Neil) this issue was dealt with.  The Plaintiff sued for damages as a result of an alleged assault which occurred on July 11, 2009.  He prosecuted his claim in the usual course (outside of Rule 68) and set the matter for a 5 day Jury Trial.   The Defendant’s opposed this and brought a motion to force the case into Rule 68 saying it was clearly worth less than $100,000 and that the rule was mandatory in these circumstances.  The Plaintiff opposed arguing that he is claiming in excess of $100,000.
Madam Justice Gerow granted the motion finding that the case was likely worth less than $100,000 and cannot “justify the expense of a five day jury trial“.  The Court provided the following reasons:

[13] Mr. Singleton did not provide any authorities which support his position that an award for the types of injuries he suffered and his treatment by the defendants will exceed $100,000. As well, he has not presented any authority for his position that it is the plaintiff who determines whether the claim should be brought under Rule 68. I note that there appears to be no such limitation in the rules. Rule 68(7) provides that on the application of any party, or as result of the court’s own application, an order may be made that the rule does not apply to an action. In other words, it is not up to only one of the parties to determine whether or not Rule 68 applies.

[14] The rule is mandatory in nature and applies to all claims which fall into subrule (2). In my view, the evidence to date and the case law to which I have been referred, supports the defendants’ position that the claim being advanced by Mr. Singleton is one which falls within Rule 68. Most of the pre-trial procedure has been completed, and the examinations for discovery which have been conducted have fallen within the time limits set out in Rule 68. Neither the plaintiff nor the defendants are suggesting they will require experts in addition to those allowed under the rule.

[15] As set out in subrule (13), the overarching consideration in determining applications under Rule 68 is proportionality. The court must consider what is reasonable in relation to the amount at issue in the action.

[16] As in Berenjian and Uribe v. Magnus, 2009 BCSC 1230, a jury trial is being sought by the party opposing the application for an order that the matter falls within Rule 68. Based on the affidavit material, I have concluded that the claim being advanced by Mr. Singleton is relatively simple and straightforward, and is not one that can justify the expense of a five day jury trial.

[17] For the forgoing reasons, I have determined it is appropriate to make the order sought by the defendants. Accordingly, I am making an order that this matter proceed under Rule 68, and the trial be before a judge alone.

This is an interesting judgement because it seems to require that a Plaintiff adduce evidence of the likely value of their claim to defeat such a motion.

As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Rule 68 is repealed under the new rules but parts of it survive in Rule 15.  I’ve previously written about this and you can find my analysis here.  In short, Rule 15 incorporates the mandatory language of Rule 68 for personal injury claims under $100,000 so this case will likely retain its value as a precedent after the new rules take effect.

ICBC Injury Claims and Unfair Settlements – Getting The Adjusters Evidence

Written by admin on . Posted in Civil Procedure, Settlement Law, Uncategorized.


Buyer’s Remorse – that’s the feeling of regret people sometimes get after making a big purchase or an important decision.  When people settle their ICBC Injury Claim they sometimes get buyer’s remorse.  They can regret the settlement and wish they could undo it.
In most circumstances an ICBC Injury Settlement can’t be set aside after a full and final release has been signed.  Sometimes though, in circumstances such as fraud or unconsionability, these settlements can be undone.
Reasons for judgement were released today dealing with an interesting issue in the context of a case alleging an unfair ICBC settlement.   In today’s case (Coates v. Triance) the legal issue was whether a Plaintiff could examine the ICBC adjuster under oath before the trial began to discuss the circumstances of a supposed settlement.
The Plaintiff was involved in a motor vehicle accident in 1999.  In May of 2000 the plaintiff apparently signed a full and final release.  The Plaintiff was 19 at the time.  The Plaintiff later sued the alleged at fault motorist.  That motorist was insured with ICBC.  In the Statement of Defence the defendant stated that the claim was already settled.  The Plaintiff responded that the release should be set aside because the “settlement was manifestly unfair and unconsionable”.
As the lawsuit progressed the Plaintiff’s lawyer wished to examine the ICBC adjuster involved in the settlement discussions under oath.  The ICBC adjuster refused and a Court motion was brought to compel the examination.  The motion was granted and the Court ordered that the ICBC adjuster undergo a pre-trial examination to canvass the details of the supposed settlement.  The highlights of Madam Justice Griffin’s reasons were as follows:

[5] Thus, a key factual issue in this case on the pleadings is whether a settlement and release procured by ICBC from the plaintiff, when she was 19 and unrepresented, should be set aside.  As mentioned, the witness, Ms. Lo, is the adjuster who procured the settlement, and the plaintiff’s position is that she acted inappropriately.

[6] Ms. Lo was a participant in a key factual event in question in this case.  What she knows and does not know about the circumstances of her dealings with the plaintiff and the settlement and release relates to a material issue at trial: the enforceability of that settlement and release.

[7] Sometimes it is preferable to deal with a non-party witness by written questions and answers.  But the fact that a witness is willing to proceed this way is not a complete answer to an application for a Rule 28 examination.  In this regard, I refer to the case of Cheema v. Kalkat, 2009 BCSC 736.

[8] Here there is evidence of the questions posed in writing and the written answers.  There were 200 questions.  I find the answers provided by Ms. Lo to be not responsive in a way which will help the plaintiff learn sufficient information to be able to assess the merits of the issue of whether or not there was an enforceable settlement and release.  The responses provided by Ms. Lo leave many questions unanswered on the material factual issues to which she was a witness.  Many responses are superficial and unhelpful.

[9] I conclude that if the plaintiff does not have the opportunity to examine this witness, the plaintiff cannot assess her case before trial and therefore cannot form an informed view and possibly settle the case, and the plaintiff could be taken by surprise at trial…

[14] There is no question that an examination of Ms. Lo will assist in a determination of the proceeding on the merits.  She is a key witness to events that form a central issue in the case.

[15] There is also no question that an examination of her will be just.  She is not prejudiced in any way.  Her involvement in the material events arose in the course of her employment with ICBC, which continues to be her  place of employment. Her evidence on these matters will not be personally embarrassing or tread on an area of her own personal privacy.  On the other hand, the plaintiff could be prejudiced if she is not allowed to investigate and explore Ms. Lo’s evidence in advance of trial.

[16] Here, I consider that a Rule 28 examination will be the most speedy and inexpensive way of proceeding to determine this case on its merits.  The written questions and answers exchanged already clearly reveal to me that the questions for Ms. Lo involve a scope of examination that is appropriate but that is most efficiently conducted by oral examination rather than by written questions and answers.  I am satisfied that more time will be taken up by lawyers drafting further written questions and drafting written responses than would be taken up by a Rule 28 examination…

[21] In this case, the most efficient way of proceeding so as to allow the merits of the issues in the case to be ultimately determined, would be by way of a free-flowing examination of the witness as counsel for the plaintiff sees fit, rather than requiring the plaintiff to follow the court’s checklist of acceptable and unacceptable questions.

[22] As noted in Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1977), 3 B.C.L.R. 90 at 100, a Rule 28 examination may extend to all that is relevant generally to all parties in the action.

[23] Therefore, in allowing the plaintiff’s application, I make no ruling on the acceptability of particular questions in the previously provided list of questions or on the validity of any objections to those questions.

Now to Cross-Reference:  Do the New BC Supreme Court Civil Rules change the law relating to pre-trial examination of witnesses?  Not really.  Rule 28 is reproduced almost identically in the New Rules and can be found at Rule 7-5.  The requirements mirror the current wording of the rule so this case ought to retain it’s value as a precedent after the New Rules come into force.

$50,000 Non-Pecuniary Damages for Chronic Neck/Low Back Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $50,000 Non-Pecuniary Damages for Chronic Neck/Low Back Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the fair assessment of damages for chronic soft tissue injuries.
In today’s case (Baxter v. Jamal) the Plaintiff was involved in a ‘substantial‘ 2005 motor vehicle collision.  The Plaintiff was in her vehicle in an intersection waiting to turn left.  The Defendant “ran a red light and struck the driver’s side door of the plaintiff’s vehicle“.
Despite feeling no pain at the time of the accident the Plaintiff in fact was injured.  Her symptoms came on shortly after the crash and some of them persisted to the time of trial.   In awarding $50,000 for the plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Boyd stated as follows:
[18] Dr. Witherspoon and Dr. Rosemary Nairne Stewart, a physiatrist who conducted an independent medical examination on behalf of the plaintiff in February 2009, both opine the plaintiff has suffered soft tissue injuries to her neck and back.  Since more than three years have passed since the injury, they expect she will continue to experience her current symptoms over the long term and that as a result, she will likely be unable to do physically demanding work.  ..

I am satisfied that pre-accident, the plaintiff was asymptomatic and that since the accident, she has unfortunately been plagued by ongoing neck and back pain which now remain unresolved over four years since the accident.  I accept Dr. Nairne Stewart’s opinion that her condition is either the reflection of the soft tissue injuries (suffered at the time of the accident) which remain unresolved or are the result of the trauma to her back (suffered at the time of the accident), which has rendered a previously asymptomatic condition symptomatic.

[34] I accept Dr. Nairne Stewart’s evidence concerning the plaintiff prognosis, namely that she is “likely to continue to experience all of her current symptoms and limitations over the long term.  She will be unable to do physically demanding work because of her injury.  In sedentary work, she will continue to need a good ergonomic setup in her workstation and the flexibility to change her work tasks and position periodically throughout her workday”.

[35] I accept that these injuries have had a significant effect on the plaintiff’s life, both in terms of her career and her recreational activities. ..

[43] On a revinew of all of the evidence, and considering the significant impact these injuries have had and will continue to have on this young woman, I find that an appropriate award of damages is $50,000.

An interesting part of this decision dealt with the Court’s analysis of the competing medical evidence.  As is common in ICBC Injury Claims the Defence called the evidence of an ‘independent medical examiner’ (orthopaedic surgeon Dr. Maloon) who provided an opinion contrary to the Plaintiff’s treating physician with respect to the extent of the accident related injuries.  The court noted that Dr. Maloon’s competing opinion was ‘obliquely stated‘ and ultimately preferred the evidence of the Plaintiff’s doctors.  This case is worth reviewing for the Court’s discussion of the competing expert evidence and the analysis of the Court in favouring the expert evidence in support of the Plaintiff’s case.


BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 51 Comments on BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Important reasons for judgement came to my attention today dealing with discovery of documents in BC Injury Litigation.
The BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.
When a Defendant requests Third Party Records Plaintiff’s often consent, obtain the documents, and then exchange a copy of the relevant records.  When the parties don’t consent a Court Motion can be brought.
With this background in mind today’s case dealt with an important topic; when a motion for Third Party Records is brought can the Court order that the Plaintiff sign authorizations to allow the Defendant to get the records directly?  Mr. Justice Hinkson held that such a shortcut is not allowed under the Rules of Court.
In today’s case (Stead v. Brown) the Defendant “brought an application to require the plaintiff to execute consent forms for the production of the records of some ten doctors, three hospitals, two groups of physiotherapists, WorkSafeBC, the Ministry of Housing, and Service Canada“.
The Plaintiff opposed the application on the basis that the Court lacked the power to make such an order.  Mr. Justice Hinkson agreed and held that even if the requests were relevant a Court could not compel disclosure in this fashion, instead the Defendant would have to follow the procedure set out in Rule 26(11) of the BC Supreme Court Rules.
In reaching this conclusion Mr. Justice Hinkson was referred to the BC Court of Appeal decision Peel Financial Holdings Ltd. v. Western Delta Lands where the BC High Court held that “The Supreme Court judge cited no authority fo rhis power to compel a party to consent, and no authority for such a power was provided to us.  As I jhave said, a consent given pursuant to an order is a contradiciton in terms“.
Mr. Justice Hinkson went on to find that while there was another case (Lewis v. Frye) which held that a Supreme Court judge could compel a party to sign an authorization, that decision was wrong.  Specifically Mr. Justice Hinkson held as follows:
Regrettably the decision of the Court of Appeal in Peel Financial Holdings Ltd. was not considered which Hood J. and I am persuaded that the binding nature of that authority if considered would have altered the conclusion reached by him had the authority been brought to his attention.
I conclude that the plaintiff in this case cannot be ordered to execute authorizations for the release of records in the (hands) of third parties.  The mechanism that must be pursued in order to obtain the hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of Court.
This decision is important because it clarifies the procedures that must be used when Defendants in Injury Lawsuits wish to obtain the records in the hands of Third Parties and the Plaintiff does not consent.  Time will tell whether the New Rules of Court which soon come into force will effect this reasoning.

More on Rule 37B – The Conduct of the Parties as a Factor

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized.

Further to my numerous posts revieiwng BC Supreme Court cases interpreting and applying Rule 37B following an injury claims trial, reasons for judgement were released today dealing with a unique issue; in exercising discretion under the Rule can the Court consider the conduct of the successful litigant?
In today’s case (Lakhani v. Elliott) the Plaintiff was injured in a 2005 car crash.  Before trial the Plaintiff made a formal offer to settle her case under Rule 37B for $95,000 plus costs and disbursements.
While the Plaintiff did not obtain all the compensation she sought at trial she fared well enough to beat her formal offer.  Specifically, after an 11 day trial Mr. Justice Voith awarded the Plaintiff just over $105,000 in total damages (You can click here to read my post summarizing the trial findings).
Despite the Plaintiff’s relative success at trial all did not go smoothly.  Mr. Justice Voith made some damaging findings with respect to her credibility.  Some of the highlights of these findings were as follows:

[33]      The defendants asserted that Mrs. Lakhani’s credibility was suspect. I agree in significant measure. I believe there are a number of distinct factors that have caused me to question, in some cases reject, and in other cases to significantly discount her evidence. In the main, I find that Mrs. Lakhani has overstated her symptoms resulting from the Accident; downplayed the significance of her 2001 workplace injury; and has been untruthful regarding the Accident’s effect on her graduation from nursing school. I will discuss these concerns in turn…

[40]      I believe that Mrs. Lakhani has tended to considerably overstate the severity of the symptoms that she suffers from as a result of the Accident….

[46]      For the plaintiff to assert that she has routinely and consistently suffered from pain, from the date of the Accident to the trial, which approaches the worst pain possible is not tenable. For her to describe her pain in terms which would be comparable to that of patients who are heavily medicated to assist with their pain management or who are inextremis goes beyond mere subjectivity or imprecision. It is instead either so inaccurate a description as to be of no value or it is a description intended to overstate. In either case it is not a description that can be relied upon….

[51]      The second significant concern with the plaintiff’s evidence was a tendency to downplay the significance of her 2001 workplace injury or to suggest some improvement in her symptoms in relation to that injury prior to the Accident…

[54]      Indeed Mrs. Lakhani sought broadly to suggest that in late 2004 she reclaimed or reassumed control of her life. She said this was so with respect to spending time with her sister, with respect to gardening and even with respect to her household activities. This too is all inconsistent with the objective record of what she told others she could do, with the medical assessment that her condition had plateaued or with her admission that things had become “as good as they were going to get”…

[59]      Quite simply the overall picture which the plaintiff sought to paint with her evidence was one where the very significant “life altering changes” brought on by her low back injury occupied little or no space. This absence of balance in her evidence had the affect of considerably detracting from its weight.

[60]      A third concern with Mrs. Lakhani’s evidence arises from having testified that the Accident caused her to graduate two terms later than she otherwise would have. Specifically, Mrs. Lakhani said that the pain and difficulty associated with the Accident caused her to skip the May to August 2005, as well as the January to April 2007 academic terms. This is not credible on an objective basis…

[66]      Plaintiff’s counsel sought to persuade me that an eight month delay in Mrs. Lakhani’s graduation was a very modest component of the plaintiff’s claim and not one that would cause the plaintiff to be less than forthright. In my view, however, the focus of the plaintiff’s evidence was not designed to obtain the modest financial benefit that receiving her degree earlier would have generated, but rather to impress upon the court the ongoing severity of her injuries. Quite apart from her motivation, the documents I’ve referred to as well as the admissions she made in cross examination, simply do not accord with the evidence she first gave.

With this background at hand the Plaintiff brought an application for double costs under Rule 37B.  The Defendants opposed and argued that given the Plaintiff’s “failure to be forthright at trial” the Court should not exercise its discretion to award the Plaintiff double costs.  Mr. Justice Voith agreed and provided the following analysis:

0] While the dominant objective of Rule 37B, found under the heading “Offers of Settlement”, is likely to promote early or reasonable settlement, additional factors, and in particular the conduct or honesty of one of the parties, can be relevant in considering whether to make an order of double costs under 37B(5)(b). This is apparent from numerous sources…
[13] Second, both the permissive nature of Rule 37B(5), which establishes that the new rule does not purport to create any automatic double cost consequences, and the non-exhaustive list of factors in Rule 37B(6) acknowledge the flexibility inherent in Rule 37B and the prospect that the Rule is amenable to furthering legitimate policy objectives apart from settlement…

[15] It is important to emphasize that in this case there is no issue of depriving the plaintiff of the ordinary costs to which she is entitled or of any award of special costs being made against her. Instead, the only issue is whether she should be entitled to double costs in light of various findings that I made in my Reasons for Judgment.

[16] Having regard to the foregoing authorities, and the underlying rationale that drives them, I can see no principled reason why a lack of candour or probity on the part of a party who gives evidence at trial should not constitute an “other factor the court considers appropriate” under Rule 37B(6)(d) in any potential award of double costs. An award of double costs, or a refusal to award such costs, is one of the means available to a court of signalling to litigants the types of conduct or behaviour it considers as either worthy of promotion or, conversely, as worthy of rebuke…

[20]        The same considerations apply to a party whose evidence is found by a court to be dishonest or designed to exaggerate or inflate a claim. Such a party should understand the seriousness with which that conduct will be regarded. It should similarly understand the potential consequences of that conduct, including its relevance to an award of double costs that the party might otherwise be entitled to.

[21]        In making these comments I am mindful that there are a great many cases where a party’s evidence is not accepted by the court for a variety of reasons. In many cases a party’s best recollection may simply not accord with other objective evidence. A party’s candid evidence may not, in light of the expert evidence, be accepted. Indeed it is not remarkable or unusual for a party to place a somewhat positive slant on given events. The mere fact that a party’s evidence is not accepted by the court, without more, does not engage the considerations I have identified. There is nothing in the conduct of such a party that warrants any reproach or criticism. It is, instead, the natural result of all cases where competing memories or competing versions of given events require resolution…

[24] In this case, the specific findings I referred to go beyond the “normal trial process” and do extend to a finding that the plaintiff sought to mislead the court and to significantly exaggerate the claim being advanced. Such conduct is worthy of censure and, in the circumstances of this case, disentitles the plaintiff to the award of double costs that she seeks.

This case serves as an important reminder of the crucial role that Plaintiff credibility plays in injury litigation.
In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

More on ICBC Injury Claims and the Subjective Nature of Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation – it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.
In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia.  Fault was admitted by the rear motorist.   The vehicles did not suffer much damage but the Plaintiff alleged injury.
The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:
She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[?]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.
The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle.  Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries.  Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion.  In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non?pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain.  If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.

Do I Have to Pay Income Taxes on My ICBC Injury Claim Settlement?

Written by admin on . Posted in ICBC Wage Loss, Settlement Law, Uncategorized. 141 Comments on Do I Have to Pay Income Taxes on My ICBC Injury Claim Settlement?


Well folks, it’s that time of year again, tax time.  Time to figure out how much we’ve all earned and make sure that we pay the Government their cut.
If you settled a tort claim from a BC motor vehicle collision do you have to pay income taxes on the amount?  The short answer is no.
Generally a personal injury settlement covers a lot of areas which are not taxable, for example money for pain and suffering and loss of enjoyment of life, past medical expenses, future medical expenses. and so on. Oftentimes a settlement also includes money for past/future wage loss (also known as awards for diminished capacity).  You would think this portion of a settlement would be taxable but it is not.  The reason being that there is a restriction limiting past wage loss awards from BC motor vehicle accident tort claims to “net income”.  This restriction is set out in s.98 of the Insurance (Vehicle) Act which reads as follows:


You can click here to read more about the net income tax restriction for past wage loss awards in bc motor vehicle accident litigation.  As a result of s. 98 the amount of tax payable is already deducted before judgement/settlement making the money non-taxable.

Non-Pecuniary Damages for Avulsion Fracture of Knee and Credibility Discussed

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 61 Comments on Non-Pecuniary Damages for Avulsion Fracture of Knee and Credibility Discussed


Reasons for Judgement were released today by the BC Supreme Court addressing two noteworthy topics, the non-pecuniary damages for a right knee avulsion fracture with good resolution and the potential consequences of testimony which overstates the effects of an injury in an ICBC court case.
In today’s case (Dodsworth v. Krenus) the Plaintiff was struck by a vehicle while he was walking in a crosswalk in North Vancouver, BC.   Fault was admitted by the motorist.  The Plaintiff sustained various injuries the most serious being “an avulsion fracture of the insertion of the lateral collateral ligamentous complex of his right knee where it inserted in the fibular neck“.
As significant as this sounds the fracture was ‘minimally displaced’ did not require surgical intervention and made a good recovery.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Masuhara noted the following:
[34] Mr. Dodsworth suffered a serious injury and endured considerable pain particularly during the first few weeks following the accident.  He suffered multiple bruises and abrasions from the accident, in addition to the avulsion fracture.  He was on pain medication for a month, wore a knee brace for four months, his mother testified to his significant pain during the first few days of the accident, he suffered a rectal tear caused by the constipation from the pain medications, he had to attend physiotherapy 2 to 3 times a week for months, and he was unable to bear weight on his injured leg for about three months.  On the other hand, he had sufficient ability to within a few days of the accident to attend his family doctor’s office, attempt to take classes at UBC, attend traffic court in North Vancouver to dispute traffic violations, to go shopping and make purchases to replace his pants, prescription glasses, and laptop computer that had been damaged in the accident, and start physiotherapy. ..
[36] …The medical evidence indicates that there is a risk, though small of the plaintiff developing early degenerative osteoarthritis in his right knee as a result of the accident.  The plaintiff has regained full range of motion in his right knee with no residual knee instability; as well, he has full range of motion of his lumbar spine.  This evidence also indicates that there is an even chance he will continue to suffer some intermittent, occasional annoying and disabling low back pain for the foreseeable future.  In terms of neurologic injury, the plaintiff did not suffer any permanent neurologic injury as a result of the accident.

[37] I note the evidence of the plaintiff’s family physician since birth who stated in his report that “in time Justin will become completely asymptomatic”. ..

[39] Having reviewed the cases provided by each of the parties and having regard to the specific circumstances of this case with respect to the inconvenience, loss of enjoyment of life and the pain and suffering the plaintiff has experienced, and making allowances for risks, I assess general damages as being $45,000.

I’ve written many times about the crucial role Plaintiff credibility plays in any BC personal injury lawsuit or ICBC claim.  Pain is inherently subjective and cannot be measured.  If a Plaintiff lacks credibility this will directly impact the value of a claim.  The role of credibility in injury litigation was highlighted once again in today’s case where Mr. Justice Masuhara found that the Plaintiff’s “testimony was overstated in regards to his disabilities“.  This finding in all likelihood affected the Court’s valuation of the Plaintiff’s non-pecuniary loss.  In coming to this conclusion the Court made the following key comments:

[38] I find that Mr. Dodsworth’s testimony was overstated in regard to his disabilities.  I say this in light of the following:

(a)      his full participation as a camp leader for two summers at Camp Elphinstone post-accident .  He was one of two leaders in charge of ten campers on a continuous basis for two weeks at a time over the entire summer.  He would lead the children in a wide variety of activities such as hiking, camping, swimming, climbing high ropes, sailing, field games, kayaking, canoeing, etc.  I note that this included lifting and carrying a large war canoe, kayaks, hobie cats, and canoes.  There is no indication that he had any limitations in these activities other than his own statement.

(b)      his ability to ski on double diamond runs as he indicated in his examination for discovery.  In this regard, I did not accept his correction at trial that he was actually in the Seventh Heaven area an intermediate ski area.  Mr. Dodsworth’s vagueness, lack of recall or inconsistencies during the trial reduced the level of reliance to be placed on his more recent recall of events and the level of his injuries generally.

(c)      his ability to successfully complete within a concentrated period of time all of his lifeguarding certifications and subsequent annual re-certifications, all of which involved a fairly high level of physicality and concentration;

(d)      his ability to carry on as a lifeguard and swim instructor, though I note at one point he did not take on any shifts as a swim instructor but did not tell his supervisor.  My view is that this was more related to his claim than his disability;

(e)      his ability to successfully complete his education in an expeditious fashion; and

(f)       his vagueness or lack of recall relating to events surrounding previous employment, his diversion, and inconsistency between the aforementioned activities and his claimed disability.

Given all of his activities I am not persuaded that his pain is or will be as debilitating as submitted.  I do not view the ongoing complaints as significant as those suffered by the plaintiffs in the cases he cited to the court, including the extent of his right knee injury.

As readers of this blog know a common theme in injury litigation is that ‘stoic’ plaintiffs are not punished by reducing the value of their claims due to their tough attitudes.  This can be contrasted with numerous cases where damages are assessed at a lower range where Courts find plaintiffs have overstated their injuries.  A good lesson to learn for lawyers and clients alike is that a tough attitude in the face of injury is not a bad thing.

Neck, Low Back and Knee Soft Tissue Injuries Discussed

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.
In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued.  All three trials were heard together.  His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed.  This left the court to deal with the Plaintiff’s motor vehicle accident claims.
The first motor vehicle collision happened in 2003.  The Plaintiff was 15 at the time.  He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk.  The issue of fault was admitted.  The Plaintiff suffered a knee injury and eventually had arthroscopic surgery.  Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury.  In arriving at this figure the Court highlighted the following facts:
86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident.  He suffered discomfort and a restriction in his activities.  In the first three weeks after the Second Accident, Evan missed six full days of school.  He found it difficult to crouch or kneel and felt that the knee was unstable.  He was not able to carry out his part-time job as a football referee.  He used crutches for a month or two and then used a cane.  He found it difficult to use the crutches because this caused additional pain in his right wrist.  His parents rented a wheelchair for him to use at home.  He was unable to take part in part-time work over the Christmas holidays…

[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee.  The structural injury was mild.  If there was damage to the ACL, it was not significant and healed quickly.  As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury.  All of the doctors accept that there was a severe strain to the right knee.  The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.

[101] The experts also agree that Evan should have been symptom free sometime after June 2006.  However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms.  The question that remains is whether Evan falls within that small subset.  If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau.  This question raises the issue of Evan’s credibility….

I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents.  There are simply too many inconsistencies in his case to accept his assertions at face value…

[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident.  There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident.  I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints.  I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status.  In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort.  Specifically, I find that the symptoms persisted for four or five years…

[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.

The second accident was a rear-end car crash.  Fault was admitted.   The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury.  In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:

[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant.  By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…

[135] Given my findings, the cases referred to by the plaintiff are of little assistance.  In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur.  Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation.  In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.

In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility.  In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role.  Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence.   Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“.  This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.

Be Nice, Clear Your Ice…Fault for Slip and Fall Accidents

Written by admin on . Posted in ICBC Ankle Injury Cases, Occupier's liability claims. 108 Comments on Be Nice, Clear Your Ice…Fault for Slip and Fall Accidents


When I was growing up in Toronto I remember public service commercials often being played in the wintertime with the slogan “Be Nice, Clear Your Ice“.  Due to the temperate climate of Victoria, BC I have not heard a similar public service announcement for years.  That being said, regardless of where in Canada you live if you are responsible for a roadway/driveway/sidewalk/parking-lot that is covered in ice/snow reasonable steps should be taken to remove it.  Not only is removing it from your property the sensible thing to do, failing to do so can lead to a successful lawsuit and reasons for judgement were released by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (O’Leary v. Rupert) the Plaintiff rented a basement suite in the Defendants home.  When returning from work one day the Plaintiff parked her car in the driveway and attempted to walk up the driveway to the stairs of her basement suite.  It was dark outside and none of the lights were on.  Before reaching the stairs the Plaintiff slipped and fell.   The Plaintiff sued for damages and succeeded.  In finding the Defendants liable Mr. Justice Voith found that they did not take reasonable steps to keep the driveway clear of hazards.  Specifically the Court summarized and applied the law as follows:

[38] The obligation of the Ruperts under the Tenancy Agreement was to “maintain the residential property in a reasonable state of …. decoration and repair.” Conversely, the obligation of Ms. O’Leary under s. 10 of the Tenancy Agreement was to “maintain reasonable health, cleanliness and sanitary standards.” In saying this, I recognize that as a matter of practice Mrs. O’Leary swept and shovelled the stairs and pathway leading to her suite.

[39] Second, as I have said, it is common ground that the Ruperts maintained and shovelled the whole of their driveway without ever suggesting to Mrs. O’Leary that this obligation properly fell to her. Liability may be imposed on a party who has voluntarily undertaken to do something they were not otherwise obligated to do: see Goodwin v. Goodwin, 2007 BCCA 81, 64 B.C.L.R. (4th) 280, at para. 26. Where that voluntary task is performed negligently and causes foreseeable harm to a plaintiff, liability may arise. Once the Ruperts undertook to maintain and shovel the whole of their driveway, regardless of whether they were under a legal obligation to do so, they had a duty not to perform this task negligently.

Analysis

[40] In MacLeod, Mr. Justice Burnyeat listed a series of factors, and the legal authorities where they are referred to, that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the OLA. These factors include “whether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.”

[41] In this case, the application of most of these factors, together with the factors I have referred to earlier that emanate from Zavaglia, support the conclusion that the defendants breached the duty of care they owed to the plaintiff. The driveway of the Rupert home was sloped. I have found that it was routinely slippery and that it was icy on the night of January 12, 2007. It was dark on that evening and it was routinely unlit. These factors, in combination, gave rise to a situation that was unsafe or hazardous. In addition, the defendants knew that Mrs. O’Leary was required to cross over parts of the driveway, after exiting her car, to access her suite. Her use of the areas in question and the hazards it presented were thus foreseeable.

[42] In saying this, I recognize that we live in a relatively northern climate and that our winter weather conditions often create an environment that is inherently precarious. In Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at p. 439, the court said “Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented.”

[43] Still further, I accept that the standard or test is one of “reasonableness and not perfection”: Fournier v. Grebenc, 2003 NBQB 221, [2003] N.B.R. (2d) (Supp.) No. 28 at para. 31. Finally, I recognize that this case deals with a residential home rather than an apartment building, as in Neilson v. Bear, [1999] B.C.J. No. 86 (S.C.), or a shopping centre, as in Murphy v. Interprovincial Shopping Centres Ltd., 2004 NLSCTD 210, 241 Nfld. & P.E.I.R. 316, or a parking lot, as in Parmar v. Imperial Parking Ltd., [1977] B.C.J. No. 486 (S.C.), where the standards and procedures established by the landlord in response to winter conditions are designed to accommodate greater volumes of personal traffic. Accordingly, they are likely to be more rigorous or exacting.

[44] Nevertheless, the conditions that existed at the Rupert home were unnecessarily unsafe. I say unnecessarily unsafe because with little effort and at modest expense the conditions on the driveway could have been much improved. The simple installation of lighting that worked either on a timer or on a motion detector would have provided Mrs. O’Leary with the illumination necessary to better see where she was walking. Both devices are inexpensive. Both would have addressed the inconsistency with which the Ruperts turned on their outside lights or the occasions where, as in the case of the evening when Mrs. O’Leary fell, they had not yet arrived home from work to turn on the lights.

[45] Similarly, the use of salt or some other traction agent would have addressed the icy condition of the driveway. Though the Ruperts were diligent about shovelling their driveway, that step, without more, was not enough. Once again this step would have been relatively inexpensive and would not have been time consuming.

[46] I am also satisfied that the failure of the defendants to take these measures to address the icy and precarious condition of the driveway caused Mrs. O’Leary to fall.

[47] It is noteworthy that the Ruperts have, since Mrs. O’Leary’s accident, both taped the switch for the outside lights open and begun to apply salt to their driveway following a snowfall. It is clear that post-accident conduct cannot be viewed as an admission of negligence: Anderson v. Maple Ridge (District) (1992), 71 B.C.L.R. (2d) 68, 17 B.C.A.C. 172 (C.A.) at p. 75. Nevertheless, in Anderson, Wood J.A., as he then was, concluded that moving a stop sign after an accident was relevant to the question of whether it was difficult to see prior to the accident. Here the steps taken by the defendants post-accident are relevant to whether the driveway was dark and whether it remained slippery or icy after being shovelled.

[48] Similarly, post-accident conduct can be used as an indication of the ease with which a risk might have been avoided: Niblock v. Pac. Nat .Exhibition. (1981), 30 B.C.L.R. 20 (S.C.) at p. 25.

Mr. Justice Voith awarded the Plaintiff $25,000 for non-pecuniary damages.  Her most serious injury was a “second degree sprain of her ankle” which continued to impede the Plaintiff in some recreational activities some two years later.  There are not too many cases out there dealing with ankle sprains from the BC Supreme Court and this precedent may prove useful for others with similar injuries.