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Rule 37B and Withdrawn Formal Settlement Offers

Written by admin on . Posted in Civil Procedure.

I’ve written many times about the relatively new Rule 37B and its consequences in BC personal injury claims (click here to read my previous posts), yesterday reasons for judgement were released by the BC Supreme Court (New Westminster Registry) giving more clarity to this rule.
In yesterday’s case, ICBC v. Patko, ICBC sued the defendant alleging fraud.  In the course of the proceedings the Defendant made 2 offers to settle, one of which was withdrawn prior to trial and replaced with a subsequent formal offer.  The Jury dismissed ICBC’s claim against the Plaintiff.  In deciding what costs consequences should flow from these facts one of the issues decided by Mr. Justice Grauer of the BC Supreme Court was whether costs consequences can flow from a formal Rule 37B settlement offer when that offer is withdrawn prior to trial.  In finding that Rule 37B does permit costs consequences to be triggered in these circumstances the court stated as follows:

[31]            Jonathen Patko made a formal offer to settle to ICBC in the amount of $22,500 on June 5, 2007.  On June 4, 2008, after Mr. Patko had pleaded guilty to the quasi-criminal charge against him and had been fined and ordered to pay restitution, he withdrew that offer.  On October 23, 2008, when it became clear that a summary trial was impracticable and this matter would therefore proceed to a full trial, Mr. Patko delivered a further offer to settle in the amount of $11,000.

[32]            Because the action against Mr. Patko was dismissed, the issue addressed by my brother Goepel in A.E. v. D.W.J., 2009 BCSC 505, does not arise, except to confirm that my discretion is limited by the provisions of Rule 37B(5).

[33]            The plaintiff argues that the first offer to settle, dated June 5, 2007, is of no consequence and cannot be considered, because it was revoked a year later.  As to both offers, the plaintiff argues that neither was “one that ought reasonably to have been accepted” in accordance with Rule 37B(6)(a).  In this regard, the plaintiff pointed out that it had paid out over $55,000 as a consequence of the accident and its aftermath, and that Mr. Patko admitted his lie.  Accordingly, the plaintiff argued, both offers were for far less than what the plaintiff had paid out and might have reasonably expected to recover.  ICBC would, of course, have had to pay out that $55,000 even if Mr. Patko had not lied.  This reality did not seem to factor in its assessment of the claim and Mr. Patko’s offers.

[34]            The first question is whether I am limited to considering the second offer to settle, given that the first was revoked a year after it was made.

[35]            In my view, there is nothing in Rule 37B that would place that limitation on my discretion.  Notwithstanding the evolution of the treatment of offers to settle in the Rules, it is clear that one of the principal purposes of Rule 37B remains the same as that noted of the former Rule 37 by Cumming J.A. in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, 122 D.L.R. (4th) 330 (C.A.):

… to encourage conduct that reduces the duration and expense of litigation, and to discourage conduct that has the opposite effect.

[36]            Both offers constitute an “offer to settle” within the meaning of Rule 37B(1)(a).  Although the first offer was indeed revoked, it was outstanding for a full year.  The real question is whether, notwithstanding its eventual withdrawal, it was an offer that ought reasonably to have been accepted while it remained open.  To treat it this way is, in my view, consistent with the object described by Cumming J.A. in Skidmore.

[37]            Turning to the issue of reasonableness, I do not think that this question turns on the losing party’s view, at the time that the offer was made, of the result it might expect to achieve.  Rather, reasonableness must be viewed from the perspective of the state of the litigation at the time of the offer, and from the perspective of the result.  In this case, the issues were clear at the time of the first offer, let alone the second.  This was not a case where, for instance, further discovery and investigation was required before the plaintiff could reasonably evaluate its position in light of the offer.

[38]            As to the reasonableness of the plaintiff’s expectation, I note that it was ICBC who had chosen trial by jury, thereby accepting the degree of uncertainty that arises from that mode of trial.

[39]            Moreover, it was the plaintiff that chose to bind itself by a “zero tolerance” policy, which prevented the possibility of a compromise settlement in a case that was not a typical automobile insurance fraud claim. It was certainly open to ICBC to adopt such a policy, no doubt for its own good reasons.  But in this proceeding, the policy worked against ICBC, allowing for no flexibility notwithstanding the unique facts of the case.

[40]            In all of these circumstances, I conclude that the first offer was one which ought reasonably to have been accepted.  In choosing not to accept it because of its own assessment of the strength of its position and its “zero-tolerance” policy, ICBC took its chances, and it lost.

[41]            Taking that into account, as well as the other factors set out in Rule 37B(6), and the course of the litigation in general, I conclude that Jonathen Patko should be awarded double costs of all steps taken in this proceeding after June 5, 2007, when the first offer to settle was delivered.

Motor Vehicle Cases and Expert Reports Addressing Fault

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Motor Vehicle Cases and Expert Reports Addressing Fault

I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

More on Pain and Suffering Awards for Plaintiff's with Pre-Existing Disabilities

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

Earlier this week I posted about pain and suffering awards in BC for Plaintiff’s with pre-existing severe injuries, today, further reasons for judgment were released by the BC Supreme Court, Vancouver Registry, dealing with this topic. In today’s case (Winkelmans v. Stoffels) the Plaintiff was injured in a rear end car crash in Richmond BC on January 29, 2000.  The Defendants admitted fault for the accident.  
Shortly after the accident the Plaintiff was diagnosed with Multiple Sclerosis.  The Plaintiff did not claim that her MS was caused by the car crash at trial.   The Plaintiff’s MS caused troubling symptoms including “hearing loss, vision problems, fatigue, vertigo, balance difficulties, headaches, problems with memory, speech coordination, weakness, dizziness and stiffness.”. 
The main focus of this trial was whether the Plaintiff had any ongoing symptoms from her car crash by the time of trial or whether her ongoing symptoms were related to other causes such as the MS.  The court found that the Plaintiff indeed was injured in the car crash and continued to suffer from injuries by the time of trial.  In valuing the Plaintiff’s pain and suffering at $60,000 Mr. Justice Curtis made the following comments about her MVA related injuries imposed on her symptoms of MS:

[32]            Having MS has made it difficult for Ms. Winkelmans to recover from her car accident injuries as is recorded in the medical reports.  There are times when she cannot exercise and stretch as she should because of her MS symptoms.  The defendant, through negligence, having injured someone who cannot recover as quickly or as fully as a normal person remains in law on the “thin skull” principle liable to pay compensation for the problems caused by the accident injury, even although they are greater because the plaintiff’s recovery is impaired by her health.  The consequences of the accident injuries to Ms. Winkelmans are, because of her MS, more severe than they would be to a person not burdened with her health issues.  On the other hand, the defendants are not liable to compensate her for what she would have experienced from her previous neck and back problems or for what her MS would have brought on without the intervention of the car accident.

[33]            In summary, I accept that Ms. Winkelmans’ neck and back, including her lumbar spine suffered injury caused by the January 2000 collision and that she suffers a degree of continuing headaches, neck pain and back pain to the present time because of her injuries.  While the extent to which her accident injuries has contributed to her overall condition has not prevented her from working or doing her normal activities, it has introduced continuing pain into her life which will continue in the future – which is particularly difficult for a person who already suffers from MS.  On this basis, I assess Ms. Winkelmans’ claim for general damages for pain and suffering and loss of the amenities of life at $60,000.

$70,000 Non-Pecuniary Damages Awarded for Back and Knee Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Knee Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases.

(Please note the past wage loss award in the case discussed below was varied slightly on appeal.  The BC Court of Appeal Judgement can be found here)
Here is the latest in my effort to continue to grow this online database of ICBC and other BC Personal Injury Cases addressing damages for pain and suffering.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Bradshaw v. Matwick) awarding a Plaintiff $268,389 in total damages as a result of injuries and losses suffered in a 2006 motor vehicle collision.
The crash was a rear end collision which occurred in Port Coquitlam.  Liability (fault) was admitted focusing the trial on quantum of damages (value of the injuries).
The Plaintiff was a 41 year old metal fabricator.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000  Mr. Justice Groves summarized the Plaintiff’s injuries as follows:

[32] By the time of trial, the plaintiff’s injuries were close to three years old.  I accept the plaintiff’s evidence that he continues to suffer from some level of disability resulting from the accident—he continues to suffer pain and he continues to have a disability which prohibits heavy lifting, prolonged standing, neck flexion, and sustained and repetitive reaching.  I accept the plaintiff’s evidence that at present, he continues to put all of his physical energies towards his work.  When he is not at work, he is resting and preparing for the next day of work.  The effect of the injuries caused by the accident have created a significantly lower quality of life for the plaintiff.

[33] As for the knee injury, the plaintiff continued to walk with a significant limp in court.  This is consistent with what is reported by:  his spouse, Sandra Bennett; his co-workers Rune Akerbakk and Ron Philbrook; and by his less than sympathetic employer, Rob Charland.  The evidence is suggestive that the medial tear may be repairable by surgery.  Of note, it took considerable time, despite the plaintiff’s desire early on for a MRI, to have the MRI performed.  There is no evidence before me as to when or if surgery to repair this knee is possible or scheduled…

[43] The plaintiff suffered injuries to his back, neck, shoulder and left knee.  He was unable to return to work for over three months after the April 26, 2006 accident, and then only with difficulty and on reduced hours.  Close to three years after the accident, the plaintiff continues to experience considerable pain in his neck and shoulder, back and knee.  The evidence is clear that his job as a metal fabricator involves physically demanding tasks which exacerbate these injuries.  He has not been able to return to his pre-accident performance levels at work.

[44] Two of the expert witnesses, Dr. Spooner and Dr. Vaisler, testified that the plaintiff may have a permanent disability as a result of the accident injuries.  The injuries and the corresponding pain levels have significantly affected the plaintiff’s quality of life and his relationship with his family, as he has little energy or ability to remain active outside of work hours and is frequently irritable and short-tempered as a result of the pain.

[45] The plaintiff’s lifestyle has been dramatically affected by the injuries he suffered in the accident.  The plaintiff, prior to the accident, was an active outdoorsman who regularly went fly fishing with his daughter at remote locations around the Lower Mainland and in southern British Columbia.  Since the accident he has completely curtailed this activity and his relationship with his daughter has suffered.  Prior to the accident, he was an active father with his young son, enjoying activities with his son in the yard, and in the home.  Since the accident his relationship with his son has resorted to playing video games or other activities which involved sitting and lying down, with no physical exertion.

[46] Ms. Bennett describes the plaintiff, prior to the accident, as a “fabulous 100% dad”.  She described that her daughter viewed him as “her god”.  Now the daughter does not want to hang around with her father any longer.

[47] The evidence suggests yard work and snow removal is simply left undone, as the plaintiff can no longer do it.

[48] Ms. Bennett describes her relationship with the plaintiff as “hell”.  She says that when the plaintiff is at home, the family is “walking on eggshells”.  The plaintiff is in near constant pain.  He has to immediately lie down after work.  His interaction with the family is minimal.  He is completed affected by the pain.

[49] His relationship with his wife, Ms. Bennett, who testified, has become tenuous at best.  Prior to the accident they enjoyed an active sex life—they no longer do.  For close to 2½ years, because of his injuries, the plaintiff slept on the living room floor rather than with his wife.  Prior to the accident, the plaintiff vacuumed, did dishes, and cleaned up around the house and was completely responsible for outside yard activities.  The plaintiff and his wife purchased a home on a quarter acre lot.  The home was, to use the vernacular, a “fixer upper”.  The home was repaired by considerable efforts of the plaintiff and the quarter-acre yard was completely landscaped by the efforts of the plaintiff.  Since the accident he has been unable to participate in home repairs or landscaping work.

Pain and Suffering for Plaintiffs With Pre Existing Injuries

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

How do courts value pain and suffering (non pecuniary damages) when a person with a severe pre-existing injury is injured in a subsequent event?  Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, (Monych v. Beacon Community Services Society) dealing with this issue.
In today’s case the Plaintiff was initially injured in a severe motor vehicle collision in 1992.  As a result of this he was rendered a quadriplegic.  Despite this he was able to lead ‘a relatively active life until November 2006.  He regularly left his home in his manual wheelchair and in his car for exercise, hobbies, entertainment and to visit friends and family.  Prior to the November 2006 accident, Mr. Monych could use a manual wheelchair, drive a car, dress himself, bend at the waist and pick up objects, repair his vehicles and regularly engage in sexual activity with his girlfriend.  Since the November 2006 accident Mr. Monych has been unable to do most of these things. ‘
In 2006, while in the care of the Defendant, the Plaintiff was injured while being transferred from his wheelchair.  The Plaingiff fell during this tranfer.  As a result of this fall the Plaintiff broke both his legs.  Madam Justice Gerow found that the Defendants were responsible for negligently assisting in the transfer of the Plaintiff.  
The Plaintiff’s injuries and their consequences were summarized as follows:
[41]            After reviewing the evidence, I am satisfied that as a result of the fall Mr. Monych suffered fractures to both his legs.  The evidence is that the fractures have not healed and the prognosis is that it is unlikely they will.  No surgical intervention is anticipated or recommended…
[47]            As a result of the leg fractures Mr. Monych’s legs were splinted, causing him a severe restriction of his ability to move around.  While his legs were splinted, he was bedridden and he developed the ischial ulcers.  As stated earlier, Dr. Clinton-Baker’s opinion is that the long hospital stay was a result of the bilateral leg fractures and the ischial ulcers that developed for the first time while in hospital.  I accept Dr. Clinton-Baker’s opinion that the ischial ulcers developed during the long hospital stay that was necessary because of the bilateral leg fractures…
[52]            After considering all of the evidence, I have concluded that but for the accident the injuries causing Mr. Monych’s long hospital stay have resulted in a deterioration of Mr. Monych’s condition to the point where he is restricted to his bed and his electric wheelchair.  If the accident had not occurred Mr. Monych would not have suffered the increased restrictions and limitations on his activities
In valuing the Plaintiff’s losses for general damages Madam Justice Gerow noted a very important principle when determining the value of pain and suffering and loss of enjoyment of life namely that “to rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life.”
In awarding $120,000 for the Plaintiff’s general damages the court engaged in the following analysis:

[61]            The evidence from Mr. Monych, the lay witnesses and his caregivers is that Mr. Monych can no longer use a manual wheelchair, do self-assisted transfers to the toilet or shower, do independent transfers, bend at the waist to pick something up, change his own catheter bag, dress himself or drive an automobile.  He has not been able to have a shower or use a toilet since the accident.  As well, he can no longer take part in many of the extracurricular activities he used to, including visiting friends, going to the park with his girlfriend and working on automobiles.  Prior to the accident of November 4, 2006, he was able to do all those things.

[62]            As well, the evidence establishes that Mr. Monych’s personal life has been impacted.  Prior to the accident, he had an intimate relationship with his girlfriend and that has not resumed since his return home from the hospital.  Although Mr. Monych says he would like to resume a sexual relationship, the movement of the bones in his legs deters his girlfriend. 

[63]            Mr. Monych and the defendants have provided me with a number of cases to assist in determining the appropriate award for pain and suffering.  Mr. Monych submits that an award for general damages of $160,000 is appropriate, and that the range is $70,000 to $160,000.  The defendants submit that their authorities support an award for general damages in the range of $30,000.  I have considered the authorities presented by the parties.  As in most cases, there are aspects of the decisions which are helpful, but they also have features which distinguish them from this case. 

[64]            The defendants rely on Ranta v. Vancouver Taxi Ltd. (9 July 1990), Vancouver B882210 (S.C.), as support for the argument that the appropriate amount for general damages is $30,000.  In that case, the plaintiff, who was a quadriplegic, sustained a broken leg due to the negligence of a taxi driver.  In my view, the case has little application to the case at bar.  Harvey J. found that the plaintiff had failed to establish that the defendants’ negligence caused his present and continuing disability.  The injuries that were attributable to the accident were much less severe than the injuries Mr. Monych has suffered and had no long lasting impact.

[65]            I agree with the comments in Boren v. Vancouver Resource Society for the Physically Disabled, 2002 BCSC 1134 at para. 60:

Counsel for the defendant submits the award for non-pecuniary damages should be limited to a consideration of the physical injury sustained October 11.  I disagree.  Rather, the circumstances here raise issues similar to those in Bracey (Public Trustee of) v. Jahnke, [1995] B.C.J. No. 1850 (S.C.), varied on other grounds (1997), 34 B.C.L.R. (3d) 191 (C.A.), in which Oliver J. observed at para. 27 that:

To rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life.

[66]            I am satisfied that Mr. Monych has suffered pain and suffering and loss of enjoyment of life as a result of the November 4, 2006 accident.  As stated above, the evidence establishes that as a result of the accident, Mr. Monych suffers ongoing disabilities that have caused a severe restriction to his independence and ability to pursue the activities he was involved in prior to the accident.  He has lost the independence of being able to transfer himself, his ability to exercise and go out independently in his manual wheelchair, his ability to drive vehicles, his sex life and much of his social life.

[67]            Having considered the authorities and the evidence concerning the effect of the injuries on Mr. Monych, and allowing for the probability that his activities would have become more restricted, and his independence more compromised over time due to his ongoing medical conditions, I am of the view that the appropriate award for non pecuniary damages is $120,000.

 

Could You Be At Fault For A Crash If You Have the Right of Way?

Written by admin on . Posted in ICBC Liability (fault) Cases. 74 Comments on Could You Be At Fault For A Crash If You Have the Right of Way?

The short answer is yes, and reasons for judgment were released by the BC Supreme Court (Bain v. Shafron) today discussing this legal principle.
In today’s case a collision occurred over 8 years ago in Vancouver, BC.  (the reasons why the case took over 8 years to get to trial are discussed in the judgment).  The Defendant entered an intersection on a green light.  While there she yielded to a bus that was trying to make a left hand turn.  By the time the bus cleared the intersection the Defendant’s light turned red.  The Plaintiff, then approaching from the Defendant’s right, entered the intersection on a green light and a collision occurred.   
Despite entering on a green light Madam Justice Fisher of the BC Supreme Court found the Plaintiff to be 100% responsible for this collision and dismissed the claim.
In doing so she discussed the law relating to collisions and the duties of driver’s with the right of way as follows:

[11]            As I explain below, I have found that Ms. Shafron lawfully entered the intersection of Oak and Broadway.  Accordingly, she had a statutory right of way under s. 127(1)(a)(iii) of the Motor Vehicle Act and Mr. Bain was obligated to yield to her right of way when he entered the intersection:

127 (1) When a green light alone is exhibited at an intersection by a traffic control signal,

(a)        the driver of a vehicle facing the green light

(iii)       must yield the right of way to vehicles lawfully in the intersection at the time the green light became exhibited …

[12]            Ms. Shafron as the driver of the vehicle with the right of way was the dominant driver and Mr. Bain was the servient driver.  A dominant driver does not lose that position by unreasonable actions but the existence of a right of way does not entitle the dominant driver to disregard an apparent danger: Atchison v. Kummetz, (1995), 59 B.C.A.C. 81 at para. 19, Abbott Estate v. Toronto Transportation Commission, [1935] S.C.R. 671.  There is a duty of care to avoid a collision when the dominant driver sees or ought to see that the other driver is not yielding the right of way: Bedwell v. McGill, 2008 BCCA 6.  In order for the plaintiff in this case to prove that the defendant was negligent, Mr. Bain must establish that Ms. Shafron should have become aware that he was not yielding and that she had a sufficient opportunity to avoid the collision.  Any doubts should not be resolved in favour of the plaintiff: Walker v. Brownlee, [1952] D.L.R. 450 (S.C.C.) at para. 50, Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347, Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75.

[13]            The standard of care of a driver is not one of perfection, but whether the driver acted in a manner which an ordinarily prudent person would act: see Hadden v. Lynch, 2008 BCSC 295 at para. 69 and the cases cited therein.

The principles summarized by Madam Justice Fisher are something all BC motorists should be familiar with.  Just because you have a green light (or otherwise have the right of way) does not necessarily mean you are not at fault for a collision.  If you are a ‘dominant driver’ and can reasonably avoid a collision where someone is not yielding to your right of way you may be negligent and liable for the crash.

More on BC Personal Injury Claims and Litigation Privilege

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues. 42 Comments on More on BC Personal Injury Claims and Litigation Privilege

I’ve written previously on BC Personal Injury Claims and Litigation Privilege and today reasons for judgment were released by the BC Supreme Court further considering this topic.
In today’s case (Semkiw v. Wilkosz) the Plaintiff was the widow of a person who was allegedly killed as a pedestrian in a serious motor vehicle collision in Vernon, BC in 2006.
The driver of the allegedly offending vehicle was operating a vehicle owned by U-Haul Co. (Canada) at the time of the crash.  Following the crash the driver gave a statement to a a “U-Haul adjuster” and subsequent to this she showed a copy of this statement to a lawyer that she consulted with and to the RCMP in Calgary.
The Plaintiff’s lawyer asked for a copy of this statement and the Defendants lawyer in the injury lawsuit refused to produce it claiming that it was subject to litigation privilege.
The Plaintiff also asked for a copy optometrists records relating to the eyesight of the alleged driver and lastly asked for photographs and measurements of the van allegedly involved in this collision taken by a professional engineer instructed by U-Haul.  Production of these materials was also opposed on the basis of litigation privilege.
In rejecting the claim for privilege Mr. Justice Rogers of the BC Supreme Court summarize and applied the law as follows with respect to the statement to the insurance adjuster (so that the following excerpt makes sense Ms. Aisler is the ‘U-Haul adjuster’ and Ms. Wilkosz is the alleged driver):

[12]            It is evident from this list that Ms. Aisler had several goals in mind when she asked Ms. Wilkosz to give her statement.  The current litigation is not clearly dominant among them.  In fact, it appears that Ms. Aisler was as concerned about whether Ms. Wilkosz would ask for payment of no?fault accident benefits as she was about instructing some lawyer that U?Haul might eventually retain or preparing for litigation being advanced by the third party to the accident.  I cannot, on Ms. Aisler’s evidence relating to the purposes for which the Wilkosz statement was obtained, conclude that this litigation was the dominant reason for getting it.

[13]            Further, what a party actually does with a document and how it treats that document before its production is demanded can sometimes be as good an indicator of privilege as anything that the party may decide to assert after that demand is made.  In this case, Ms. Wilkosz’s interaction with the police officer in Calgary clearly demonstrates that U?Haul was quite content for her to have and keep and distribute a copy of her statement to whomever she chose.  Ms. Wilkosz was not, apparently, under any instruction from U?Haul to not show the statement to other persons.  If she was under such instruction, one would have thought that U?Haul would have adduced evidence of such in this application, but it did not.  Furthermore, Ms. Wilkosz made it clear that she had shown her statement to her lawyer Mr. Yuzda.  If Ms. Aisley had truly obtained that statement in order to protect U?Haul from, among other things, Ms. Wilkosz’s claims for accident benefits it is unlikely in the extreme that Ms. Aisley would have allowed Ms. Wilkosz to take the statement off to show to a lawyer who might well advise her on how to successfully prosecute such a claim.

[14]            In my opinion, the fact that U?Haul gave a copy of the statement to Ms. Wilkosz and that it did not restrict her use of that statement demonstrates that U?Haul’s dominant purpose in obtaining the statement was not to instruct its own counsel with respect to the accident.  If that had been U?Haul’s dominant purpose, common sense dictates that U?Haul would have kept the statement to itself, or if it let Ms. Wilkosz have a copy it would have done so after giving her very strict instructions limiting her dissemination of it.

[15]            The defendants’ claim of litigation privilege over the Wilkosz statement must fail.  Because the defendant has chosen to assert a single basis for its claim of privilege for all of its documents, the failure of its claim with respect to that one document means that its claims for all of the documents must likewise fail.  The defendants will be required to give production of all of the documents pre?dating September 21, 2007 and for which they claimed privilege in Part III of their supplemental list of documents.  It follows that Ms. Wilkosz need not give evidence in her examination for discovery concerning the circumstances in which she gave her statement to U?Haul.

With respect to the optometrists records:

[16]            Ms. Wilkosz’s visual acuity is obviously an issue in this case.  She has filed no material to suggest that records relating to her eyesight contain any embarrassing, sensitive, or confidential information that is not relevant to these proceedings.  She has not, therefore, met the criteria for insisting that these records be sent first to her counsel for review.  The plaintiff is, therefore, entitled to receive the records directly from the professionals involved in Ms. Wilkosz’s eye care.  Plaintiff’s counsel has offered her undertaking to deliver those records to defence counsel immediately upon receipt.  Defence counsel has, for no good reason I can discern, been reluctant to accept that undertaking.  In the result there will be an order that defence counsel accept the undertaking.  There will be an order that Ms. Wilkosz sign authorizations for release of her eye care records and delivery of those records to plaintiff’s counsel.  She must sign those authorizations and see that they are delivered to plaintiff’s counsel within seven days of the release of these reasons.  Defence counsel will deliver the signed authorizations to plaintiff’s counsel immediately upon receipt.

and lastly with respect to the engineers materials:

 

[18]            Ms. Aisley’s affidavit does not describe Mr. Gough’s involvement in the case beyond saying that she understood that he was to provide expert advice and that he took a look at the U?Haul van and tried to look at another vehicle involved but was rebuffed by its owner.  Mr. Gough’s affidavit describes his activities concerning the U?Haul van and the site, but does not illuminate his purpose.  Specifically, Mr. Gough does not assert that he examined the van and the site for the purpose of preparing an expert report or for the purpose of assisting counsel in preparing for this or any other litigation.  On Mr. Gough’s evidence, the most that I can conclude is that U?Haul asked him to have a look at the van and the accident scene and to record his observations.  There are no grounds on which U?Haul can claim that Mr. Gough’s work is protected by privilege.

[19]            Mr. Gough’s observations are, of course, relevant to issues raised in the lawsuit.  The plaintiff has asked Mr. Gough to produce the records of his observations but he has refused.  This is a proper circumstance for an order under Rule 26(11) that Mr. Gough deliver to all parties of record a copy of all photographs and records in his possession relating to his examination of the U?Haul van and of the accident scene.

ICBC Now on Twitter

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized. 46 Comments on ICBC Now on Twitter

Over the past few weeks I have posted a couple times about the potential uses that information on social media sites can be put to during personal injury litigation.  The first case involved the production of a hardrive to let the Defendant learn about the Plaintiff’s use of Facebook, the second case involved the contradiction of a Plaintiff’s testimony with photos from her Facebook account.
It is only fitting with these recent cases highlighting the use of social media in personal injury litigation that ICBC joins twitter.  I just stumbled on their account (right after the Canucks sealed their second straight against the Blues!) and as I write this post ICBC only has one ‘tweet’ which discusses BC’s new ‘enhanced’ driver’s licences.  To date ICBC is following no-one and has 13 followers.
I’m not sure who from ICBC is behind this account but hopefully they will designate an approachable person to run it and constructively use the service.  I would like to see ICBC use Twitter to enable them to better their product (auto insurance) and interact beneficially with their customer base.
As recent cases highlight, however, Social Media outlets can be used to spy on people involved in injury litigation and folks need to be careful with respect to the type of information they share on sites such as Facebook and Twitter.  Through twitter I have seen countless people discuss their experiences with ICBC, both good and bad and have read many details shared about people’s ICBC claims and the process involved in dealing with these.  ICBC will undoubtedly use Twitter in a similar fashion to compile and digest this information.
In any event, as one of the few BC Injury Lawyers on Twitter I’d like to welcome ICBC to the service and hope they use this technology productively to better serve British Columbians. 

Facebook Photos Used to Contradict Plaintiff in ICBC Injury Claim

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Last week I posted on a recent BC case which ordered that a computer hard-drive be produced to permit a Defendant to examine the amount of time an allegedly brain injured Plaintiff spent on Facebook.
As evidenced in reasons for judgment released today by the BC Supreme Court Facebook’s role in the realm of BC personal injury litigation is becoming more prevalent.
In today’s case (Bagasbas v. Atwal) the Plaintiff was injured in a 2006 car crash in Surrey, BC.  From the submissions of the defence lawyer it seems that this case was defended on the basis of ICBC’s LVI program. The Plaintiff sued for damages claiming $40,000 for her pain and suffering due to a whiplash injury and other soft tissue injuries.
In the course of the trial she testified that as a result of her injuries “she could no longer kayak, hike or bicycle“.  The defence lawyer contradicted this by producing to the Plaintiff “photographs posted on her Facebook page that showed her doing these activities“. 
In assessing the Plaintiff’s pain and suffering at $3,500 Madam Justice Satanove made the following comments:

[7]                The medical evidence before me was rather vague.  Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006.  I further find that the whiplash had probably substantially resolved itself within three months.  Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities.  The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas.  It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)).

[8]                Unfortunately, because of the inflated view the plaintiff took of her injuries, none of the cases cited by her counsel were of assistance in fixing non-pecuniary damages.  Similarly, because the defendant refused to recognize any damages, his counsel provided no case law on an appropriate range of compensation.

[9]                On my own research, this case is in line with the damage awards made in Bonneville v. Mawhood, 2005 BCPC 422; Siddoo v. Michael, 2006 BCPC 12; and particularly, Saluja v. Wise, 2007 BCSC 706, which are in the range of $1,500 to $6,500.  Taking the whole of the evidence into account, which reflected some injury and pain, but not much loss of enjoyment of life, I award the plaintiff $3,500 for non-pecuniary compensation.

This case along with last week’s decision show that the use of information contained on social media sites such as Twitter and Facebook is alive and well in BC Injury Litigation.  Lawyers and clients alike need to be aware of the potential uses such information can be put to in their claims.

ICBC Negotiations – Formal Rule 37B Offers and the Effects of a Counter Offer

Written by admin on . Posted in Civil Procedure, Uncategorized. 86 Comments on ICBC Negotiations – Formal Rule 37B Offers and the Effects of a Counter Offer

Under the old Rule 37 when a formal settlement offer was made by ICBC the Plaintiff could continue to negotiate and make counter offers without jeopardizing the ability to accept ICBC’s formal settlement offer at a later date.  This was so due to rule Rule 37(10) and 37(13) which held that a formal offer to settle did not expire by reason that a counter offer was made.
As readers of this blog know Rule 37 has been repealed and replaced with Rule 37B.  What if ICBC makes a formal settlement offer under Rule 37B that does not contain any language addressing under what circumstances the offer expires.  Would a counter offer act as a rejection of the formal offer such that it can’t be accepted at a later date?
The first case that I’m aware of dealing with this issue was released today by the BC Supreme Court (More Marine Ltd v. The Ship “the Western King”).
In today’s case the Defendant made a formal offer under Rule 37B to settle a lawsuit for “$40,000 inclusive of interest and costs“.  The Plaintiff made several counter offers which were not accepted.  The Plaintiff then purported to accept the defence formal settlement offer.  The parties could not agree on the documents that would be signed to conclude the settlement and the Plaintiff brought a motion to enforce the settlement.
In dismissing the Plaintiff’s motion Madam Justice  Satanove held that in the circumstances of this case the Plaintiff’s counter offer acted as a non-acceptance of the Rule 37B formal offer which then extinguished the formal offer of settlement.
Her summary of the law as applied to this case could be found at paragraphs 5-11 of the judgement which I reproduce below.

[5]                The plaintiffs’ argument would have succeeded under the old Rule 37 which provided in subsections (10) and (13) that an offer to settle did not expire by reason that a counteroffer was made, and an offer to settle that had not been withdrawn could be accepted at any time before trial.  Rule 37(8) provided that a party could withdraw an offer to settle before it was accepted by delivering a written notice of withdrawal in the prescribed form.

[6]                However, Rule 37B contains none of these provisions.  It simply provides a mechanism for the Court to consider an offer to settle when exercising its discretion in relation to costs.  It has been described as “significantly different, and represents a radical departure, from its predecessor Rule 37” (Alan P. Seckel & James C. MacInnis, British Columbia Supreme Court Rules Annotated 2009 (Toronto: Thomson Carswell, 2009) at 372-374).

[7]                In my view, Rule 37B does not change the common law with respect to settlement agreements, which in themselves are just another form of contract.  The old Rule 37 expressly changed the common law in this regard, but the old Rule 37 is repealed.  If the Legislature had intended the provisions of old Rule 37(8), (10), and (13) to continue to apply to the new Rule 37B, it would have retained the wording of those subsections.

[8]                Turning then to the common law of contracts, it is trite to say that a counteroffer constitutes non-acceptance of a previous offer.  The previous offer must be revived in order to be accepted after a counteroffer has ensued.  (United Pacific Capital v. Piché, 2004 BCSC 1524; Cowan v. Boyd (1921), 49 O.L.R. 335 (C.A.)).

[9]                Applying these principles to the chronology of facts in this case, when the plaintiffs issued the counteroffer of January 6, 2009, they were communicating non-acceptance of the Rule 37B offer of November 28, 2008 from the defendants, and this latter offer was no longer extant.

[10]            The only question that remains is whether the November 28, 2008, offer was revived.  The plaintiffs’ purported acceptance in their letter of March 3, 2009, could be construed as a form of offer to the defendants in the same terms as the defendants’ November 28, 2008 offer, but the defendants’ letter of March 5, 2009, once again evidences a counteroffer by its terms.  The subsequent correspondence between the parties reflects further negotiations between them, but no consensus ad idem.

[11]            In conclusion then, based on my interpretation of new Rule 37B, there is no binding separation agreement for me to enforce and the plaintiffs fail in their application.

This case is a reminder that the common law of contract is alive and well regarding settlement offers under Rule 37B and that many of the statutory terms that applied to Rule 37 formal offers no longer are in place.  Formal settlement offers made by ICBC should be carefully scrutinized to see if a counter offer can be made or if doing so will extinguish the formal offer.