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More From BC Court of Appeal on Deductibility of ICBC No-Fault Benefits in Tort

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were released today addressing the deductibility of Part 7 Benefits from a tort award claim for damages:
I have previously discussed the deductibility of Part 7 benefits from a BC tort award here, here, and here and you can read these previous posts / articles for background information.
In the case at bar the Plaintiff was a paraplegic.  He was confined to a wheelchair since being 29 years of age.  When he was 43 he suffered injuries in a car accident.  He sued for those injuries and was awarded damages of $210,000.  The Defendant at the trial level argued that $137,223.90 of that award should have been deducted because payment for the needs that portion of the tort award was addressing was available directly from ICBC pursuant to ICBC’s no-fault Part 7 benefits.
The trial judge allowed only a nominal deduction of $1,000.
The defendant appealed arguing that the trial judge was in error for failing to allow a meaningful deduction for future Part 7 benefits.
The Court of Appeal dismissed this appeal.  In doing so the Court referenced a well known previously decided case from the Court of Appeal addressing the issue of deductibility of ICBC Part 7 Benefits in a tort trial and restated that case as good law.  Particularly the Court noted that:
Although I do not subscribe to all of the learned trial judge’s reasoning on the issue, I have not been persuaded that he reached the wrong conclusion.  The defendant bears the onus of proving that the plaintiff is, or will be, entitled to the benefits which it claims to have deducted from the award for the cost of future care.  Strict compliance with the requirements of the statute is called for.  Uncertainty as to whether Part VII benefits will be paid or whether they would “match” elements of the tort award must be resolved in the plaintiff’s favour.
While the Plaintiff was successful in this action in avoiding a potentially financially devastating ‘deduction’ this case yet again illustrates the importance of properly applying for your No-Fault Benefits from ICBC if you are injured in a BC car accident.  Failure to do so could result in a significant deduction of damages in a tort claim.
 

The Implied Undertaking of Confidentiality and ICBC Claims

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on The Implied Undertaking of Confidentiality and ICBC Claims

Interesting reasons for judgement were released today dealing with the issue of whether a plaintiff in an ICBC tort claim has to produce materials from previous legal proceedings.
In this case the Plaintiff alleged injury as a result of a 2005 BC motor vehicle accident.  The Plaintiff was involved in previous legal proceedings.  The defence lawyer asked the court for production of 3 documents which were contested, specifically

(a)        a copy of the medical report of Dr. Bloch requested by Ms. (the Plaintiff;s) counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);

(b)        a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;

(c)        a copy of the transcript of the plaintiff’s examination for discovery in the Great West proceeding.

The court first dealt with the issue of whether the current defendant was entitled to the plaintiff’s examination for discovery transcript from a previous legal claim.  The court reproduced paragraphs 51 and 53 of the leading Supreme Court of Canada Decision dealing with the ‘implied undertaking’ of confidentiality of examination for discovery transcripts, specifically:

 

51.       As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant’s privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d’Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.

53.       I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant’s transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.

The court in this case refused the defendants motion to produce the plaintiff’s previous discovery transcript and the plaintiff’s previously obtained medico-legal report holding that 

On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A.  I am also of the view that the same must be said of the medical report of Dr. Bloch.  That report was a document created for the previous proceeding.  There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial.  In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege.  The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.

The court however, did order that the transcript of the plaintiff’s previous submissions in a cmall claims court action be produced holding that:

The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter.  That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence.  In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005.  In my view, any undertaking regarding those submissions was spent by their use in that proceeding.  

 

$35,000 Pain and Suffering for Moderately Severe Whiplash

Written by admin on . Posted in Civil Procedure, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court awarding close to $45,000 in total damages as a result of a 2006 Surrey, BC car accident.
This case involved a rear-end crash and liability was admitted.  The trial focused solely on damages.
The Court made the following findings of fact:

[50]            I am satisfied that (the Plaintiff) suffered a moderately severe whiplash injury as a result of the accident in January 2006 that involved her upper, mid and lower back, neck, and shoulders. In addition, I am satisfied (the Plaintiff) suffered an injury to the web spaces between her thumbs and forefingers on both hands when they struck the steering wheel upon impact. As a consequence of these injuries, I accept that (the Plaintiff) suffered muscle stress headaches in the back of her neck that were distinct from her migraine headaches.  Further, I accept that she had difficulty sleeping because of the pain from her injuries and, at least initially, because of the emotional distress caused by the serious nature of the accident.

[51]            There is also cogent evidence that as a result of these injuries (the Plaintiff) was incapable to performing her crossing guard job and her noon hour supervision work from January 9 to March 10, 2006. Further, it is apparent that the pain (the Plaintiff) suffered as a result of these injuries was significant enough to warrant frequent and regular appointments with Dr. Rondeau up until October 2006 and twice weekly physiotherapy treatments from February 2006 to December 2006.

[52]            After December 2006, however, there is no evidence that (the Plaintiff) sought medical treatment for her injuries. While (the Plaintiff) continued to do the exercises and stretches she was taught by her physiotherapist once or twice per week, she did not return to her doctor or seek other types of therapy until July 2008 when she began a course of massage therapy as recommended by Dr. Hershler. Moreover, (the Plaintiff) went to work and carried out her regular duties during this period with only limited discomfort as corroborated by the evidence of Ms. Sawicki and Ms. Hildebrandt. With her return to regular work duties, (the Plaintiff) was also capable of engaging in her only physical recreational activity: going for walks. As walking was a regular part of her job each day, it is likely that she was capable of returning to her pre-accident recreational walking soon after she returned to work.

Damages were assessed as follows:

1.         Non-pecuniary damages $35,000.

2.         Past loss of wages $1,474.15.

3.         Future loss of earning capacity $3,158.

4.         Special damages $665.03.

5.         Cost of future care $1,353.

6.         Loss of housekeeping services $4,704.

One procedurally interesting part of this decision was the issue of the admissibility of a treating doctor’s CL-19 report.   When people apply to ICBC for no fault benefits they have the right to obtain a report in the prescribed form from treating physicians.  The prescribed form is known as a CL-19 which is a short form fill in the blanks type of a document in which treating doctors are asked to answer certain questions relating injuries and disability.  In this case the Plaintiff  wished for the doctor’s opinion contained in the CL-19 to be admitted into evidence.  The defence opposed arguing that the report does not comply with Rule 40A (the supreme court rule dealing with the admissibility of expert opinion evidence)  The court ruled the report inadmissible finding as follows:

[6]                Clearly both parties’ positions have merit. There was nothing further  (the Plaintiff’s) counsel could have done to secure a report from Dr. Rondeau that complied with the Rules of Court. On the other hand, Mr. Sharma’s counsel had no notice of the nature of Dr. Rondeau’s opinion and an adjournment of the trial at this late stage would not have been appropriate.

[7]                I heard Dr. Rondeau’s evidence in a voir dire subject to a ruling on its admissibility. In my view, apart from his observations of (the Plaintiff’s) symptoms and his chronology of events, his testimony had very little probative value. First, Dr. Rondeau did not diagnose (the Plaintiff) as having myofacial pain syndrome. This was simply a question in his mind when he completed the CL-19 form about six weeks after the accident which was far too soon to make such a diagnosis. Second, although he observed some signs that she suffered from post traumatic stress disorder, there was also no definite diagnosis of PTSD at the time the CL-19 was completed. It is also my view that the diagnosis of such psychological conditions may well be outside the expertise of a family physician. Accordingly, the weight that could be applied to the opinion evidence of Dr. Rondeau is very limited.

[8]                In these circumstances, it is appropriate to exercise my discretion in favour of the defendant and exclude Dr. Rondeau’s opinion evidence. The CL-19 does not meet the minimum requirements for a medical/legal opinion and it would prejudice Mr. Sharma if I were to admit the evidence despite its deficiencies. On the other hand, even if I were to admit Dr. Rondeau’s opinion evidence, it adds little to the plaintiff’s case.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on . Posted in Civil Procedure, independent medical exams.

Reasons for judgement were released today dismissing an ICBC application for a second independent medical exam in a tort claim and granting an ICBC application for a ‘work capacity evaluation’.
Applications for ‘independent medical examinations‘ under Rule 30 of the BC Rules of Court arise frequently in ICBC claims when the Defendant claims that they need such an examination to ‘level the playing field‘. These applications are discretionary and given the frequency of such applications being adjudicated in our courts there is no shortage of useful precedents reported.  Today’s case doesn’t create any new law, I report it nonetheless to give my readers insight into the types of procedural disputes sometimes arising in ICBC claims.
The Plaintiff in this case had been assessed by a variety of physicians in a medico-legal context.  The Defendant wished to have the plaintiff assessed by a physiatrist and a work capacity evaluator.
In dismissing the application for an assessment by a physiatrist the court states as follows:
[4] It was submitted by defendant’s counsel that Dr. Maloon is an orthopedic surgeon, whereas Dr. Hirsch is a physiatrist, and it is important to have a rebuttal report, if you will, from a physiatrist in order to put the defendants on equal footing.  I disagree with that submission.  I disagree because as has been pointed out to me, Dr. Maloon had extensive clinical and consultation reports from a number of practitioners, including Dr. Jaworski, who was a treating physiatrist.  As well, he had the clinical records and notes from Mr. Haleta’s treating general practitioner, among others.  There comes a time when the parties can no longer seek to usurp the function of the court or the jury by asking for continuous expert reports from various specialists.  These are matters for counsel to deal with by way of cross-examination, especially when there are conflicting opinions.  There is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant.  Nothing of concern should arise merely by the fact that the defendants chose to have the plaintiff examined by an orthopod and only sometime later find out that counsel for the plaintiff had their client seen by a physiatrist.  Accordingly, I dismiss paragraph 1 of the applicants’ notice of motion.
In granting the order compelling the Plaintiff to attend a work capacity evaluation the court held as follows:
[5] A number of specialists/physicians who saw Mr. Haleta for other matters have recommended that he be seen by experts in functional and vocational capacity.  In particular Dr. Reid, who is a psychologist, recommended, and I believe that Dr. le Nobel — correct me if I’m wrong — made a similar recommendation.  It would seem to me that it would be appropriate for both parties to have the plaintiff seen by somebody to make a vocational capacity evaluation of Mr. Haleta, which would be of assistance to the court and to the jury in this particular case.  Accordingly, I order that Mr. Haleta do attend the offices of Mr. Christopher Cook for the purposes of a work capacity evaluation to be performed by Mr. Cook, and that is to be held on Tuesday, the 18th of November, commencing at 9:00 a.m. at suite 202, 20689 Fraser Highway, Langley, British Columbia.

More on Settlement Offers and Rule 37B

Written by admin on . Posted in Civil Procedure. 73 Comments on More on Settlement Offers and Rule 37B

Reasons for judgement were released today refusing to award the successful litigant double costs pursuant to Rule 37B.
The Petitioner City sued the Respondent Kennel operator seeking a declaration that the Kennel was in breach of a Bylaw and seeking conjunctive orders.  Before trial (and before Rule 37 was replaced with Rule 37B) the Respondent offered to settle on the following terms ‘this proceeding on the basis that the Petitioner’s claim be dismissed and costs in accordance with Rule 37‘
The offer was delivered less than 7 days before the trial commenced.   The claim was dismissed at trial.
The Respondents asked that the City pay them Double Costs.  Madam Justice Loo refused to order double costs noting that the formal offer of settlement conferred no benefit to the Respondents aside from costs.  The key reasons are set out at paragraph 13-15 which hold as follows:

[13]            The Court of Appeal in a number of cases has stated that the purpose of the double costs provisions of Rule 37 is to encourage early and reasonable settlements of disputes and discourage frivolous litigation:  Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330, 2 B.C.L.R. (3d) 201 (C.A.) at para. 28; Vukelic v. Canada (1997), 37 B.C.L.R. (3d) 217 at paras. 9 to 13, 94 B.C.A.C. 147; Mackenzie v. Brooks, 1999 BCCA 623 at para. 24 (sub nom. Mackenzie v. Brooks et al.), 130 B.C.A.C. 95.

[14]            Although Rule 37 is no longer in force, I find these statements of principle helpful in view of the express language of Rule 37B(4).

[15]            The petitioner’s claim was not frivolous and it was not a claim that was bound to fail.  The offer to settle conferred no benefit on the petitioner aside from costs and conferred virtually no benefit to those who complained about the noise of the barking dogs.

This is the second case that I’m aware of in Rule 37-B’s short history which refuses to award double costs to a litigant who made what can be characterized as a nuisance value offer.  It appears that if a claim is not frivolous and is not bound to fail, double costs might not be granted when the claim does indeed fail at trial if the formal settlement offer conveys ‘no benefit aside from costs’ to the litigant.
If you are proceeding to trial in an ICBC claim or are considering an ICBC settlement offer cases such as this one are worth reviewing.  I will continue to post about Rule 37B cases as they come to my attention.

More on Rule 37-B

Written by admin on . Posted in Civil Procedure. 59 Comments on More on Rule 37-B

The first decision that I’m aware of was released today dealing with the costs consequences of accepting a Rule 37 offer under Rule 37B.
The full background facts are not necessary for this narrow post.  In this case the defendants made an offer to settle for $6,000.  This offer was made in compliance with the now repealed Rule 37.  The offer was made (and accepted) while Rule 37 was still in effect.
The parties could not agree to whether a formal settlement was agreed to nor what the costs consequences were.  The Plaintiff applied to court to enforce the settlement.  The court application was not heard until October, 2008 (well after Rule 37 was repealed and replaced with Rule 37B)
Mr. Justice Rogers held that in these circumstances a settlement did exist and that Rule 37B is applicable.
Particularly he noted that:
[10]            Like the parties, I am satisfied that the original claim advanced by the plaintiffs in their statement of claim was settled by the parties’ exchange of offer and acceptance.  There will, therefore, be a declaration that the plaintiffs’ claims against the defendants arising out of the writ and statement of claim have been settled.  There will be a declaration that the settlement price to be paid to each of the plaintiffs is $6,000….

[14]            As to whether Rule 37B applies to the present case, I believe that it does.  I have come to that conclusion because the rule permits the court to consider an offer to settle, including one made under Rule 37 but with respect to which no order has been made, when exercising the court’s discretion in relation to costs:  Rule 37B(4).  The court’s discretion relating to costs is engaged when a party asks the court to make an order.  In the case of an accepted offer to settle, a party may ask the court for a declaratory order or it may apply for judgment in the terms of the settlement.  Upon such an application, the court will have discretion as to costs with respect to the application itself and with respect to any costs contemplated by the settlement.

[15]            In the present case, the accepted offer did contemplate costs in the plaintiffs’ proceeding.  Those costs were under Rule 37, but that rule has been replaced.  The costs contemplated by the settlement must now be taken to be costs under Rule 37B.  Therefore, the plaintiffs’ present application for a declaration that their action has been settled engages the court’s discretion under Rule 37B with respect to the costs of the application itself, and also of the plaintiffs’ proceeding as a whole.

[16]            As noted above, the plaintiffs argue that the court should exercise its discretion in their favour for those steps taken in the litigation up to the date that the defendants delivered their offers to settle.  The defendants argue that no order for costs should be made until the counterclaim has been concluded.

[17]            Because the issue of the plaintiffs’ costs of the now settled action falls to be decided under Rule 37B, the court must examine that rule to learn what principles will guide its decision.  As to those principles, the new rule says:

(6)        In making an order under subrule (5), the court may consider the following:

(a)        whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)        the relationship between the terms of settlement offered and the final judgment of the court;

(c)        the relative financial circumstances of the parties;

(d)        any other factor the court considers appropriate.

[18]            This provision makes it clear that the Legislature intends the court to at least consider conducting a detailed examination into, among other things:  the circumstances that pertained at various stages of the litigation relating to the party’s knowledge of the strength of its own case and that of its opponent; if the case has gone to trial, the proportionality of the offer to the judgment; and the financial circumstances of all of the parties involved.  Presumably, that detailed examination will be based on some form of properly admissible evidence.

[19]            The scope of the inquiry that the court is expected to make before awarding costs under Rule 37B is, therefore, much wider than was the case under its predecessor rule.  Furthermore, the parties to a piece of litigation have, I think, a legitimate expectation that the court will at least put its mind to the factors set out in Rule 37B(6).  This raises the question of whether there may be cases where the court can properly decline to analyze a case in light of the factors set out in Rule 37B(6).  About that I will say nothing definitive, except that this case does not appear to me to be one in which it would be judicious to ignore Rule 37B(6).

No order as to costs was made in this case because “the parties have not adduced sufficient evidence on this application to permit the court to conduct a detailed examination of the factors outlined in Rule 37B(6).”

This is certainly far from the last of the judicial development of this new settlement rule.  I will continue to post and comment about Rule 37B cases as they are released by the BC Supreme Court.

Prejudicial Closing Arguments and the Law in BC

Written by admin on . Posted in Civil Procedure.

Reasons for judgement were released today dismissing a Plaintiff’s appeal of an award of $0 as a result of a BC motor vehicle accident.
The Plaintiff was allegedly injured in a rear end accident.  He sued claiming on-going consequences from a closed head injury and a whiplash type of soft tissue injury to his neck and back.   After a 5 week jury trial in 2007 the jury found the other motorist at fault but awarded $0 as they found that this collision did not cause any injury to the Plaintiff.
The Plaintiff appealed for various reasons including a claim that the defence lawyer made ‘improper prejudicial statements‘ in his closing argument to the jury.
The BC Court of Appeal Dismissed the case finding that while some of the statements ‘may have been cause for concern (plaintiff’s counsel) took no exception and did not ask the judge to provide any direction to the jury in respect of any aspect of the defence address.’ In dismissing the appeal the Court summarized the law as follows:

[23]            This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial.  In Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, the Chief Justice explained:

[52]  In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions.  Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice.

[53]  It is, however, recognized that there may be exceptional circumstances which merit a new trial, despite a failure on the part of counsel to object to an address: Dale v. Toronto Railway (1915), 24 D.L.R. 413 (Ont. C.A.).  In R. v. Jacquard, [1997] 1 S.C.R. 314 (S.C.C.), the court declined to adopt a strict rule that the failure to object to a jury charge invariably waives the right of appeal.  Lamer, C.J.C. noted: “Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials”.  [Emphasis of Finch C.J.B.C.]

[54]  In Basra v. Gill (1994), 99 B.C.L.R. (2d) 9 (B.C.C.A.) the court recognized that where there is a “substantial wrong or miscarriage of justice” a new trial may be required, even in the absence of an objection.

[55]  In my opinion, failure of counsel to make a timely objection to irregular or improper proceedings at trial is and must remain, an important consideration in determining whether there has been a miscarriage of justice.  That consideration, however, is to be weighed against the nature and character of the irregularity or impropriety complained of.

[24]            The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial.  The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all.  (the Plaintiff’s) counsel said nothing other than what he said in reply.  If he had sought it, some instruction might have been given.  It was apparently thought to be unnecessary. 

This case, and others like it, go to show that it is difficult to succeed in an appeal when alleged improper conduct is not complained about when it occurs at the trial level.

ICBC Claims and Treating Physicians

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

In reasons for judgement released today Mr. Justice Holmes awarded an injured Plaintiff a total of $8,500 in damages as a result of injuries sustained in a 2005 BC car accident that occurred in 100 Mile House.
The Plaintiff was a passenger at the time.  His wife was driving.  The vehicle left the roadway and rolled onto its roof.  Liability for the accident was admitted by ICBC but the issue of damages was contested.
The Plaintiff led medical evidence that he suffered from ‘mechanical lower back pain’ amongst other injuries as a result of this crash.  He advanced a ‘significant claim of loss of earning capacity’.
The cause of the Plaintiff’s back pain was at issue at trial.  The court largely rejected the Plaintiff’s claim and found that the Plaintiff had pre-existing back pain which was exacerbated as a result of the collision.   The court found that the Plaintiff’s exacerbation ‘either resolved or significantly diminished within a few months of the accident.  The Plaintiff’s more serious complaints of back pain and spasm did not occur until months later…‘ 
The court summarized its findings at paragraph 48 as follows:
[48]            I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005.  That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident.  He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility.  Treatment was by continuing chiropractic and exercise.  He was able to perform his work and operate his business with minimal interference.  I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.
The Plaintiff did not call his treating chiropractor and his family physician to give evidence.  The court was critical of this and it appears that this was a main factor which fueled the court’s decision.  The court highlighted this fact as follows:

[37]            I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38]            Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action.  Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39]            I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005.  I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

If you are advancing and ICBC claim and have pre-existing injuries it is a good idea to consider calling your treating doctor to give evidence to explain your pre and post accident status to the court.  Failing to do so may result in an ‘adverse inference’ where the court may conclude that your treating doctor would have given evidence damaging to your case.

Court of Appeal Orders Re-Trial for Contributory Negligence in Bicycle Accident Case

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

Reasons for judgement were released by the BC Court of Appeal today ordering a new trial to deal with the issue of ‘contributory negligence’ of the Plaintiff.
The Plaintiff was an experienced tri-athlete and bicyclist.  He was
catastrophically injured in an accident on a steep and winding road in Langley on the morning of June 29, 2002.  Proceeding on his triathlon-model bicycle downhill towards a blind curve, he veered to the right to avoid a “cube” van coming over the centre line, lost control of his bicycle, travelled through a gap between two barriers at the side of the road, and fell down a ravine.  His spinal cord was injured at the C6-7 level, with the result that he has almost no sensation and almost no use of his body from his chest down and suffers chronic neuropathic pain.  He does have use of his arms and of his diaphragm muscles.  He has also been diagnosed with a mild traumatic brain injury.  He was 50 years old at the time of the accident.
Following a 33 day trial the BC Supreme Court found the Defendants liable in negligence and awarded close to $4.5 million for the Plaintiff’s severe injuries and damages.  The trial judge found that the Plaintiff was not contributorily negligent (that is that the Plaintiff was not even partially to blame for the accident).
The Defendants appealed on several grounds.  Their appeal succeeded on the issue of contributory negligence.  The BC Court of Appeal ordered that this issue be retried.  The court’s key finding of error at the trial level is set out at paragraphs 25-26 which I set out below:

[25]            The question that the trial judge was required to address was whether in all the circumstances Mr. Aberdeen was taking reasonable care for his own safety as a bicyclist, going down a hill he knew to be “nasty” and approaching a blind corner.  Did he use a wrong technique?  Was he going too fast?  Given that he was clearly exceeding the “advisory” speed for cars, was he creating an unreasonable risk of harm to himself as he rounded the curve?  Was he driving too closely to the centre line?  Should he not, if riding in a reasonably prudent manner, have been able to move to the right side of his lane, as Mr. McGee did, without losing control and going over the shoulder and off the road?  The trial judge did not answer these questions but, with respect, was content to base his conclusion of no negligence largely on the finding that Mr. Aberdeen could not have received a ticket.  As for the fact that the plaintiff and Mr. McGee had conversed, just before the accident, about the steepness of the hill, that could take one only so far.  As Lambert J.A. suggested in MacDonald v. Shorter [1991] B.C.J. No. 3714, 8 B.C.A.C. 179, it seems likely that “in the bulk of cases where negligence occurs, the negligent conduct is an exception to the general conduct of the person who is said to be negligent.”  (At para. 13.)

[26]            In these circumstances, I am reluctantly driven to the conclusion that the trial judge erred in failing to consider specifically whether Mr. Aberdeen had been taking reasonable care for his own safety.  (In addition, there was more than a “paucity” of evidence on the topic of speed, contrary to the trial judge’s finding.)  I would remit the issue of contributory negligence for retrial below

This case is worth reviewing for anyone involved in an ICBC tort claim involving a cyclist to see the types of factors BC courts look at when deciding whether a cyclist is partially responsible for an accident. 

Rule 37B and ICBC – J. Boyd Considers fact Defendant Insured by ICBC

Written by admin on . Posted in Civil Procedure. 53 Comments on Rule 37B and ICBC – J. Boyd Considers fact Defendant Insured by ICBC

As you may know Rule 37-B is the new BC rule dealing with formal settlements and costs consequences in the BC Supreme Court.  (to find my previous posts on this case search this cite for ’37B’).
This new rule will take some time to work itself out.  There are already conflicting reasons for judgement addressing whether it is appropriate to look at whether the Defendant is insured when considering costs consequences.
Last week J. Hinkson refused to consider the insurance status of a defendant when deciding whether to award ‘double costs’ after trial.
Reasons for judgement were released today considering the fact that the defendants were ‘represented by ICBC’ when weighing the ‘financial circumstances’ of the parties.
In addition to being the first precedent that has looked at the insurance status of the defendant as a relevant consideration, this case is interesting because it is the first to trigger ‘double costs’ even though a matter settled before judgement.
In this case the Plaintiff alleged a Mild Traumatic Brain Injury after a BC car accident.  She sued and made a formal offer to settle for $500,000 which expired at the start of trial.  The case settled on the 11th day of trial when the defendant’s offered to settle for $1 Million ‘plus assessable costs and disbursements’ less advances paid.  The Plaintiff’s accepted this offer.
The parties could not agree on the costs implications of the settlement were.  The Plaintiff asked for double costs because the Plaintiff’s reasonable settlement offer (which complied with Rule 37B) was rejected and the Plaintiff had to incur significant expense in running 11 days of trial prior to achieving settlement.
The court agreed the Plaintiff was entitled to double costs in these circumstances.  The key finding being made at paragraph 42 which I set out below:
  In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward.  Since the defendants ultimately settled for an amount which was double the plaintiff’s original pre-trial offer, it is clear in my view that her original offer to settle “…was one that ought reasonably to have been accepted”.  Certainly the terms offered in August were far more advantageous to the defendants than the ultimate amount represented by the settlement agreement.  It is also clear that there is a substantial disparity in financial circumstances between the parties.  The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.  Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial