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Motorist Faulted For Crash After Driving Too Fast In Foggy Conditions

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, assessing fault for a fatal collision which occurred during foggy conditions.
In today’s case (Roy v. McGinnis) the Plaintiff was driving a motor home which had stopped at a T intersection approaching a highway.  The Plaintiff attempted to turn left on the highway.  The area was covered in dense fog and visibility was poor.  The Plaintiff failed to appreciate that the Defendant was travelling down the highway as the Plaintiff entered the intersection.  Both motorists were found equally to blame for the crash, the Plaintiff for entering an intersection when it was unsafe to do so and the Defendant for failing to drive safely given the conditions.  In reaching a conclusion of equal blame Mr. Justice Groves provided the following reasons:

[30]         I conclude that on November 25, 2004, by operating his loaded tandem truck at a speed of at least 90 to 100 km/h when the visibility was limited to less than 100 feet due to dense fog, such that an operator driving reasonably for the road conditions would more likely have driven at close to 50 km/h, the defendant operated his vehicle in a negligent manner in that he breached the standard of care established by s. 144(1) of the Motor Vehicle Act by operating a vehicle at an excessive speed considering the visibility and weather conditions.  I further conclude that this negligence was at least a partial cause of the accident in that, but for the unreasonable and excessive speed at which McGinnis was operating his vehicle, McGinnis could have avoided the impact with Roy’s vehicle, just as Smith had avoided impact when travelling at 50 km/h.

[31]         In so concluding, I note the defendant’s argument and supporting case law that, as a servient driver turning into a lane where the defendant had a right of way, the plaintiff bears the onus of proving that a reasonable and skillful driver would have had sufficient opportunity to avoid a collision (Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 at 461).  Here the collision occurred over a very short period of time; however, I have found above that a reasonable driver would have been travelling much slower and so would have had more time to perceive the danger.  I therefore find that the plaintiff has met his burden of proving that a reasonable and skillful driver would have had a sufficient opportunity to avoid the collision.

[32]         I also find that the plaintiff was negligent…

[36]         As such, I conclude that the plaintiff was negligent in that he failed to comply with s. 175(1) of the Motor Vehicle Act, when he entered a through highway and in doing so failed to exercise appropriate caution and to yield the right of way to traffic, traffic which was so close so as to constitute an immediate hazard.

[37]         However, based on the evidence before me, I cannot draw any particular conclusion as to the relative level of negligence of these two negligent drivers.  Better put perhaps, I cannot conclude based on the evidence before me which driver was more negligent.  On the one hand, the plaintiff was clearly the servient driver, but on the other hand, the defendant was, I find on the evidence which I accept, driving at a speed far in excess of what would have been safe for the road and weather conditions he encountered on that day.  

[38]         As such, relying on s. 1(2) of the Negligence Act, R.S.B.C. 1996, c. 333, I apportion liability between the plaintiff and defendant equally.  As such, the defendant is 50% responsible for the damages resulting from the accident and the plaintiff is 50% responsible for the damages resulting from the accident. 

$160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

Written by admin on . Posted in ICBC Psychological Injury Cases. 50 Comments on $160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological issues following a collision.
In today’s case (Cornish v. Khunkhun) the plaintiff was involved in an intersection collision in 2010.  Both the Plaintiff and Defendant were found equally to blame for the crash.  The Plaintiff suffered from a  major depressive disorder and somatic symptom disorder following the collision.  Her non-pecuniary damages were assessed at $160,000 and in reaching this figure, prior to factoring in the liability split,  Mr. Justice Skolrood provided the following reasons:

[131]     The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

[132]     I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person…

[139]     The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

[140]     In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

[141]     The cause of Ms. Cornish’s confusion and memory loss is less clear as there is no neurological evidence addressing these symptoms. However, I accept Dr.  Riley’s opinion that her condition is related to her depressive disorder which I have found was caused by the accident…

[146]     Given the ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

 

Formal Offer Bested by $920 Fails To Trigger Double Costs

Written by admin on . Posted in Uncategorized. 42 Comments on Formal Offer Bested by $920 Fails To Trigger Double Costs

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing if double costs should be awarded where a formal settlement offer was bested by a modest basis.
In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was injured in a 2011 collision.  Prior to trial the Plaintiff provided a formal settlement offer of $44,000.  At trial this amount was exceeded by $920.  In declining to award post offer double costs Mr. Justice Bernard provided the following reasons:

[72]         I am not satisfied that the plaintiff’s formal offer was one that the defendant ought reasonably to have accepted. The offer was not broken down into its constituent elements and it was, therefore, difficult to evaluate. The plaintiff’s claim was under five heads of damage; therefore, a breakdown would have greatly assisted the defendant in evaluating the offer. Also, as in Barnes, the defendant had a legitimate defence to the plaintiff’s claim; indeed, the plaintiff sought $45,656 for loss of future earning capacity at trial and was ultimately awarded nothing under this head of damage.

[73]         As to whether the plaintiff’s formal offer provided the defendant with a genuine incentive to settle or not, the offer was for $44,000 and the plaintiff ultimately sought $120,596 at trial. The latter amount had not been set out in the pleadings and was not quantified until the start of the trial. There was, therefore, an insufficient basis for the defendant to evaluate whether the $44,000 offer was a genuine compromise or not.

[74]         The ultimate award was $44,920. Rule 9-1(6)(b) permits the court to compare the offer to settle with the final judgment. Here, the award was greater than the offer by only $920, or approximately 2%. This marginal difference suggests that little weight should be given to this factor.

[75]         As already observed, the defendant had legitimate defences to the claim and the damages for non-pecuniary damages were significantly reduced by new information that was elicited from the plaintiff’s expert witness in his trial testimony. The plaintiff also recovered nothing for his claim of lost earning capacity. It is noteworthy that there was competing expert evidence that made quantifying damages difficult. I am satisfied that in view of these matters an award of double costs would unduly punish the defendant for mounting a meritorious defence.

Deficient Wheelchair Ramp Leads to 50% Liability for Slip and Fall

Written by admin on . Posted in Occupier's liability claims. 50 Comments on Deficient Wheelchair Ramp Leads to 5050 Liability for Slip and Fall

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding a defendant 50% at fault for a slip and fall for building a wheelchair ramp which failed to comply with the BC Building Code.
In today’s case (Tenhunen v Tenhunen) the Defendant was a partial paraplegic.  She built a wheelchair ramp on her property for her own use but did not build it to code.  The Plaintiff slipped and fell on this ramp while visiting and suffered various injuries.
In finding the Defendant 50% liable for the incident due to the deficient ramp Mr. Justice Johnston provided the following reasons:

[55]         I find that the defendant failed to take reasonable care for the safety of those, including the plaintiff, who she knew or ought to have known would use the lower ramp. That failure consisted of building too much slope into the ramp, not providing a guard or handrail on the outside, and not making some effort to enhance traction between 2005 and 2011.

[56]         I do not view this as a case where the defendant is relieved from a duty of care because the plaintiff willingly assumed the risk, a defence available under s. 3(3) of the Act. The defendant has not directly argued that the plaintiff willingly assumed the risks of walking down the ramp, but may have indirectly raised the question by arguing that the plaintiff’s contributory negligence is overwhelming and by choosing to proceed down the ramp, the plaintiff was the author of her own misfortune.

[57]         In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 60 (S.C.), McLachlin J., then a judge of this court, said of the statutory defence the following :

A further defence available under the Occupiers Liability Acts of both Ontario and British Columbia, arises from the provisions of those Acts that an occupier owes no duty of care to a person in respect of risks willingly accepted by that person as his own risks: Occupiers Liability Act (B.C.), s. 3(3); Occupiers’ Liability Act (Ont.), s. 4(1). To establish such assumption of the risk, Show Producers need not prove the traditional volenti defence. The standard is considerably lower. For example, in Epp v. Ridgetop Bldr. Ltd. (1978), 8 Alta. L.R. (2d) 195 (T.D.), it was held that a person who was familiar with the circumstances so that he could recognize and avoid danger, assumed the risk of that danger, with the result that the occupier was not liable. Similarly, in Schulz v. Leeside Dev. Ltd., [1978] 5 W.W.R. 620, 6 C.C.L.T. 248, 90 D.L.R. (3d) 987 (B.C.C.A.), it was held that an occupier is not liable for dangers that are known to the user or are obvious to him or are so commonly known that it can be reasonably assumed that the user will be familiar with them. In Holman v. Ellsmar Apt. Ltd. (1963), 40 D.L.R. (2d) 657 (B.C.S.C.), the plaintiff was held to have been fully aware of the condition of an unlighted sidewalk and to have fully accepted the risk of danger. The occupier was absolved of responsibility.

[58]         While the plaintiff could see she was about to walk down a damp wooden ramp, and elected to proceed on the side without a guard or handrail, she could not see that the ramp was steeper than it should have been. Notwithstanding that the standard under s. 3(3) is lower than a common law volenti defence, I conclude that the plaintiff did not willingly assume the risk of walking down a ramp that was too steep.

[59]         I do find that the plaintiff failed to take reasonable care for her own safety in one respect, however. She knew there was no outside guard or handrail when she stepped onto the lower ramp, and she knew there was a handrail at least on the inside of the ramp. Even allowing for increased slipperiness because there was more debris on the inside of the lower ramp, the plaintiff was negligent to forego the increased safety of the handrail.

[60]         I accept that the plaintiff was keeping a reasonable lookout, and otherwise taking reasonable care for her own safety.

[61]         In all of the circumstances, I apportion liability 50% to the defendant, and 50% to the plaintiff.

Non Pecuniary Damages Assessed in Mild and Moderate Brain Injury Claims

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for two separate traumatic brain injury claims.
In this week’s case (Afonina v. Jansson) the Defendant lost control of his vehicle and was involved in a single vehicle collision.  Two of his passengers suffered traumatic brain injuries, one mild and one moderate, which resulted in long term complications.
In assessing non-pecuniary damages of $195,000 for one Plaintiff’s permanent mild traumatic brain injury Mr. Justice Groves provided the following reasons:
[65]         Alla suffered broken ribs, a pneumothorax, and a number of soft tissue and similar related type injuries as a result of the accident.  She was hospitalized for a short period of time and it took a number of months to recover from the significant soft tissue injuries.  Dr. Travlos’ report reported that her emotional health continues fluctuate and this impacts her overall functioning.  Most notably, she suffered a mild traumatic brain injury which, as per Dr. Travlos’ report, will affect her for the rest of her life. ..

[70]         Having reviewed the authorities provided by counsel for the plaintiff, I find them to be within the range of appropriate orders.  The numerous cases cited suggest a range of general damages in the amount of $200,000-$225,000.  A number of the plaintiffs are within eight to ten years of Alla’s age; however, the bulk of them are people who are completely non-employable, and I find that Alla has some modest residual work ability. 

[71]         In regards to those cases provided, I find Burdett v. Eidse, 2011 BCCA 191 and Young v. Anderson, 2008 BCSC 1306 most persuasive.  In Burdett, the Court of Appeal upholds a non-pecuniary award of $200,000 where a 58 year old, formerly high functioning contractor suffered severe cognitive impairments including an inability to focus, sleep or multitask as a result of the mild traumatic brain injury caused by his motor vehicle accident caused mild traumatic brain injury.  In Young, the court awards $200,000 where a 51 year old experienced a constellation of symptoms including a mild traumatic brain injury which rendered him unable to continue in his chosen profession.

[72]         In addition to the pain and suffering from the broken ribs and soft tissue injuries, most of which had resolved within six months of the accident, I note that there are a number of significant long term damages which Alla will suffer as a result of the accident.  Her mild traumatic brain injury is significantly disabling.  She was, as noted, a trained engineer with university training in the area of finances and accounting.  She now finds herself a somewhat confused and disoriented woman, someone with an inability to multi-task to any great degree.  She has to put mechanisms in place to remind herself about her responsibilities.  Although she still has good judgment, she lacks an ability to focus and to organize.  These are matters which will plague her for the rest of her life and will make the task of working and the task of providing for one’s basic physical needs, somewhat of a challenge.  Although there is only modest physical manifestations of her injuries at this stage, the fact that her brain is not functioning as it used to is considerably disabling. 

[73]         In all of the circumstances having reviewed the case authorities provided, I fix non-pecuniary loss at $195,000. 

In assessing non-pecuniary damages at $300,000 for the second plaintiff who sustained a permanent moderate brain injury the Court provided the following reasons:

[149]     Rather, I find that much of the difficulty Alissa finds herself in is as a direct result of the accident.  At that time, she was rendered unconscious and suffered seizures.  Alissa has sustained irreversible and permanent damage as a result of the moderate traumatic brain injury she suffered in the accident.  She was young at the time of the accident and her life has been irrevocable altered in a negative way.  She will not recover from the difficulties she currently has.  They will plague her for her entire life.  They are, to a great degree, vast and all encompassing.  They affect everything she does.  Absent the injuries, I have concluded that Alissa would have successfully completed some post-secondary education in her chosen field and by 2014 would have been in the work force in a full-time capacity.  Although I do note that she does have some limited capacity to earn a modest amount of income, her former goals and chosen field of work are no longer open to her. 

[150]     In all these circumstances, the appropriate award for non-pecuniary damages is an award close to the rough upper limit.  I have concluded that $300,000 is an appropriate assessment for non-pecuniary damages. 

Parents Held Responsible For Child's Destruction of School Property

Written by admin on . Posted in Uncategorized. 49 Comments on Parents Held Responsible For Child's Destruction of School Property

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding parents liable for damages caused to school property by their child.
In today’s case (Nanaimo-Ladysmith School District No.68 v. Dean) the Defendant played a prank at school by attempting to attach a lock to a sprinkler head.  While doing so “the red filament inside the sprinkler head was disturbed and, as sprinkler heads are intended to operate, it immediately began spraying water.”  This caused over $48,000 in damage to school property.
The Plaintiff was found negligent and he and his parents were ordered to pay back the money based on the operation of s. 10 of the School Act which reads as follows:
“If property of a board or a francophone education authority is destroyed, damaged, lost or converted by the intentional or negligent act of a student or a francophone student, that student and that student’s parents are jointly and severally liable to the board or francophone education authority in respect of the act of that student.”
Madam Justice Fitzpatrick noted this is a harsh result for the parents who had nothing to do with the damage but the legislative requriements are clear.  In reaching this decision the Court provided the following reasons:
[36]         What s. 10 seeks to accomplish is to impose statutory liability for the intentional actions of a student that cause damage to the school, which is a liability imposed beyond whatever liability there might be at common law. The section accomplishes a shifting of risk from the school to the student and that student’s parents arising from the actions of the student. I do not consider that a plain reading of s. 10 results in any other interpretation or a “reading in” of the meaning of “intentional act”, as the Deans assert…
[38]         In my view, there is no ambiguity in s. 10. It simply refers to an “intentional … act”. Accordingly, I conclude that the legislative intention, however draconian it may be, is that the student need not have intended to cause damage by his or her act. The parties agree that, if this interpretation prevails, the parents are liable by a plain reading of s. 10…

[93]         In my view, the School District has proven its case in terms of the applicability of s. 10 of the School Act to the circumstances here.

[94]         I am sure that this is a very unfortunate result for the Dean family and perhaps it will be for other families in the future. This was clearly the result of a young boy misbehaving and thinking that the only grief to come of it would be to Ben and perhaps the janitor in removing the padlock. Obviously, more dire consequences followed. However, if there is to be any change to this provision in the School Act, that is a matter for the legislature, not the courts.

[95]         The action is allowed and judgment is granted against all defendants in the amount of $48,630.47, plus court order interest and costs to be assessed.

$120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases. 46 Comments on $120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.
In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011.  ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;

c)     Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.

 

Why the Government Could (And Should) Put Me Out of Business

Written by admin on . Posted in Uncategorized. 48 Comments on Why the Government Could (And Should) Put Me Out of Business

With New Year’s around the bend one can’t help but think about the future.
I am a personal injury lawyer.  I sue people for a living.  The more people that are injured through the carelessness of others, the more potential business I have.
The vast majority of my business comes from car crashes.  The reason is simple, crashes cause serious injuries and there are insurance companies to fight over fair compensation.  A person drives carelessly and kills or injures another.  Those victims hire me to represent them.  That is my business.  Take away careless driving and you take away my root business, and from the perspective of the road using public that is a good thing.
So how can the government put me out of business (or at least drastically reduce it)?  Eliminate car crashes.  From here we have to look at the root cause of crashes.  Be it speeding, impaired driving, driving unsafely for the conditions, distracted driving, you name it, all of these categories fit into the umbrella of ‘human error‘.  Eliminate human error from the equation and you eliminate the vast majority of crashes.
Enter technology.  Enter Google’s driver-less cars.  These cars seek to take human error out of the driving equation.  They have been under development for a few years and now have been cleared for the road in California, Nevada, Florida, Michigan and Washington, DC.   Once perfected this technology can put a serious dent in roadway injuries/fatalities and collaterally my business.
Technology has put a lot of people out of business.  Lawyers generally feel immune from such threatened  changes but recent history has demonstrated that no professions are safe in the face of exponential technological innovation.  I have been addressing this topic for over a year, be it on twitter, at the office, at seminars, wherever.  Apparently I am not the only one with New York personal injury lawyer Eric Turkewitz authoring an article on his blog addressing this which even caught the Wall Street Journal’s attention.
To date no Canadian Provincial government has cleared the way for testing such technology on our roads.  Presently ICBC is focused on creating an ‘Anti Fraud Solution‘  Now I hate insurance fraud and so should you, but you know what’s better than tackling insurance fraud?  Tackling the root causes of crashes.  Food for thought for 2015.
 

Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Pelvis Injury Cases, Uncategorized.

Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.
In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.
The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 

Liability Admission Overturned Late in Litigation

Written by admin on . Posted in BCSC Civil Rule 7. 118 Comments on Liability Admission Overturned Late in Litigation

When fault for a crash is admitted in a formal lawsuit the Court has discretion to allow withdrawal of the admission in appropriate circumstances.  Reasons for judgement were released today by the BC Court of Appeal documenting one such instance.
In today’s case (Sidhu v. Hothi) the Plaintiffs alleged they were involved in a collision caused by the Defendant.  They sued for damages and ICBC admitted fault on behalf of the defendant.  In the course of the lawsuit a witness was interviewed who provided a statement indicating the Plaintiffs may not have been in the vehicle at all.  ICBC sought to withdraw the admission of fault.  The plaintiffs opposed arguing it was too late to do so.  The BC Court of Appeal disagreed and in finding withdrawal was appropriate provided the following reasons:

[25]         Turning, then, to what I regard as the real issue in this case – whether the chambers judge erred in concluding that most of the Hamilton factors weighed in favour of the defendants – I would suggest it would be preferable to frame items 3‑8 of the Hamilton test not as conditions that must be met, but as factors that should be considered in determining what result is in the interests of justice. Thus I would reframe items 3‑8 as follows:

(a)      whether the admission was made inadvertently, hastily, or without knowledge of the facts;

(b)      whether the “fact” admitted was or was not within the knowledge of the party making the admission;

(c)      where the admission is one of fact, whether it is or may be untrue;

(d)      whether and to what extent the withdrawal of the admission would prejudice a party; and

(e)      whether there has been delay in the application to withdraw the admission and any reason offered for such delay.

I have omitted item 6 of the original list (that the fact admitted be one of mixed fact and law), since in most cases, including Hamilton itself, this has been held to be irrelevant provided a triable issue is raised (see alsoNesbitt (B.C.S.C.) at para. 56.)

[26]         The decision as to what is in the interests of justice involves a considerable degree of discretion, and as noted in Goundar v. Nguyen 2013 BCCA 251, this court should generally not interfere with such a decision unless the judge erred in principle. In my view, the chambers judge correctly weighed the “delay” factor against the fact that the admission was made without knowledge of the evidence; that the insurer’s failure to appreciate the significance of Mr. Hothi’s witness statement was a simple oversight; that witnesses to the accident are still available; and most importantly, that if the application were dismissed, the plaintiffs might be perpetrating a fraud on the defendants and on the court. In my opinion, this possibility is one that would be very difficult to countenance. Further, allowing the application will ensure that the plaintiffs’ claim will be heard on the merits – an overarching objective referred to in Rule 1-3 of the new Supreme Court Civil Rules.

[27]         For these reasons, I would dismiss the appeal.