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More on ICBC, Rule 37B and Costs

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 59 Comments on More on ICBC, Rule 37B and Costs

I have previously blogged about the new Rule 37B (here and here) which deals with formal offers of settlement and the costs consequences of trial.
The first case that I’m aware of dealing with Rule 37B in an ICBC claim was released today.
In this case both fault and quantum were at issue.  The Plaintiff alleged that the Defendant was at fault for the car accident and claimed over $1million in damages.  The case was presented for over one week in front of a Vancouver jury.
The case was dismissed on the issue of liability meaning that the Jury found the Plaintiff was responsible for this collision thus making her entitlement to tort damages $0.
In this case ICBC (on the defendant’s behlaf) made a pre-trial offer to settle for $35,000.  This offer was made in compliance with Rule 37B.
The court refused to look at the fact that the Defendant was insured when considering ‘the relative financial circumstances of the Parties’ and concluded that the Defendant was entitled to Double Costs from the time the offer was made through trial.
I reproduce the court’s key analysis below:

a)         Ought the Defendants’ Offer to Have Been Accepted?

[20]            In her submissions, the plaintiff referred to the position that she said was taken by an unnamed ICBC adjuster respecting the responsibility for the collision.  That view was apparently a preliminary one, the basis for which is unexplained; it was not before the jury in this case, and, in any event, the conclusion would certainly not be binding on the jury or the court.

[21]            The plaintiff also referred in her submissions to the fact that she had offered to settle her claim for $160,000 plus her costs, a sum considerably less than her counsel sought from the jury.

[22]            Based upon her offer compared to the position taken by her counsel at trial, the plaintiff was clearly prepared to take a considerable gamble to achieve a significant award.  While it was open to the jury to make a sizeable award, in the event there was a finding of liability against the defendants, the discount the plaintiff was prepared to accept in order to settle the claim does not support the conclusion that she had confidence in the likelihood of securing a sizeable award at trial.  That, in my view, is one of the factors against which the reasonableness of her refusal to accept the defendants’ offer to settle must be assessed.

[23]            As I have said above, it was clearly open to the jury to dismiss the plaintiff’s claim by finding no liability against the defendants, but equally open to them to find some or even complete liability against the defendants.

[24]            While the defendants argued that the jury’s verdict proves that the plaintiff ought to have accepted their offer to settle, I do not read Rule 37B as inviting that sort of hindsight analysis.  Under Rule 37, an offer to settle was revoked once trial began.  Although Rule 37B contains no such provision, the defendants in this case stated in their offer that it was open for acceptance “at any time before 4:00 pm, Pacific Time, or the last business day prior to the commencement of the first day of trial”.  In my view, the reasonableness of the plaintiff’s decision not to accept the defendants’ offer to settle must be assessed, under that offer, only prior to the last date that the offer could be accepted, and in any case, under Rule 37B, prior to the delivery of the jury’s verdict, but not thereafter.

[25]            Weighing these factors, I am unable to say that it was unreasonable for the plaintiff to have rejected the defendants’ offer to settle.

b)         Relationship between the Offer and the Final Judgment

[26]            Implicit in the defendants’ position on costs is the argument that the complete dismissal of the plaintiff’s claim obviates a consideration of subrule 37B(6)(b).  I do not accept that that is an appropriate reading of that subrule.

[27]            With respect to this subrule, the plaintiff argues that the jury’s verdict was not one that ought to have been “seriously contemplated” by the plaintiff.  The difficulty with this position is that counsel for the plaintiff took no objection to the charge, which instructed the jury that it was open to them to dismiss the plaintiff’s claim if they were not satisfied that the plaintiff had established liability on the part of the defendant Priscilla C. Jang.  The jury’s verdict could not in these circumstances be said to be perverse, as counsel for the plaintiff argued before judgment was entered.

[28]            I do not accept the plaintiff’s submission that the jury’s verdict is difficult to accept on the evidence before it.

c)         Relative Financial Circumstances of the Parties

[29]            The plaintiff asserts by affidavit that her annual income is between $33,000 and $34,000 per year, and that her share of the expenses in the apartment she shares with a friend together with her own monthly expenses amount to approximately $2000 per month.

[30]            The plaintiff lists a debt to her lawyers of some $29,000 as well as other debts of a further $35,000, and swears that “If I am obliged to pay ICBC’s defence costs for this trial, I will be unable to meet my ongoing expenses and debts.”  I have no evidence of the extent to which the plaintiff could arrange financing to address her position, but I do not accept that her present debts or even greater financial obligations could not be accommodated by financing.  While the defendants argue that the plaintiff’s obligations to her counsel are a result of her refusal to accept their offer to settle, I do not see that the cause of the plaintiff’s debts is a relevant consideration.  The fact is that she is indebted to her counsel.

[31]            There are, however, two difficulties with the plaintiff’s position on this factor.  First, she argues that her financial circumstances are difficult.  This alone is insufficient to meet Rule 37B(6)(c).

[32]            Second, she places her financial position against that of ICBC, as opposed to that of the defendants.

[33]            While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]            The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[35]            There is no evidence before me as to the defendants’ financial circumstances.  What little I do know of the circumstances of the defendant Pricilla C. Jang is that, at the time of the accident, she was driving her mother’s motor vehicle, and that she was employed as a parts delivery person for a motor vehicle dealership.  That does not suggest to me that her financial circumstances are appreciably different from those of the plaintiff.

d)         Other Factors

[36]            No submissions were made by the plaintiff suggesting that there are other factors in this case that should influence the appropriate cost option to be employed in this case.

DISPOSITION

[37]            While I am not prepared to find that the plaintiff’s failure to accept the defendants’ offer to settle was unreasonable, I am equally unprepared to accept that the jury’s verdict was unreasonable.  I am also unprepared to conclude that there is any significant disparity in the financial circumstances of the parties so as to invoke subrule 37B(6)(c).

[38]            What then, of the function of the Rules to encourage or to deter the types of conduct referred to by Cumming J.A. in Skidmore?  As mentioned above, the plaintiff was prepared to take a considerable gamble to achieve a significant award.  Had she succeeded, she doubtless would have sought an order for double costs against the defendants following her offer to settle.

[39]            I conclude that the refusal of an award of double costs from August 11, 2008 would completely ignore the important deterrent function of the Rules.  The factors set out in subrule 37B(6) do not, in this case, persuade me that such a result would be appropriate.  I find that the defendants are entitled to an award of double costs beginning a reasonable period of time after which the plaintiff could consider their offer.  That period I find commenced on August 18, 2008, seven days after the defendants’ offer to settle.

[40]            The defendants are entitled to recover their taxable costs and disbursements of this action from its commencement until August 18, 2008 pursuant to Rule 57(9).  Those costs will be taxed at Scale B.

[41]            The defendants are entitled to double costs commencing August 18, 2008 and to their disbursements as incurred after August 18, 2008.  The disbursements will be allowed only in the amount incurred, and not at a double rate.

Appeal of $70,000 Soft Tissue Injury Claim Dismissed

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 55 Comments on Appeal of $70,000 Soft Tissue Injury Claim Dismissed

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome.  The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome.  In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million.  Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.  The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal.  In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a)  Confronting the Plaintiff

[33]            The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties.  The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70).  The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34]            The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges.  This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada.  In this country, we have an adversarial system, not an inquisitorial one.

[35]            Such a rule would be unworkable with respect to judges in our system.  Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses.  They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36]            The rule in Browne v. Dunn is not suited for application to judges.  The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation.  What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible.  That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37]            In addition, the rule in Browne v. Dunn has not been treated as an absolute rule.  Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence.  This feature of the rule is not adaptable to judges.

[38]            The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations.  The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14).  In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case.  It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25).  Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

 

ICBC Claims, Expert Evidence and Advocacy

Written by admin on . Posted in Civil Procedure, Uncategorized. 53 Comments on ICBC Claims, Expert Evidence and Advocacy

If you are involved in an ICBC injury claim you likely know that ICBC may have the right to send you to a doctor of their choosing.   They can do this in one of 2 ways, either pursuant to the Insurance (Vehicle) Regulation which allows ICBC to set up an Independent Medical Exam for any ‘insured’ seeking no-fault benefits, or under the Supreme Court Rules where the Defendant has the right to ‘balance the playing field’ by obtaining an independent medical exam in many circumstances.
Experts hired in such a situation can play a significant role in an ICBC claim.  Much weight can be attached to what an expert has to say with issues such as causes of injuries, prognosis, reasonable treatments and future disability.  Appreciating this it is important for an expert to present any opinion in a fair and balanced way.  However, expert witnesses sometimes cross the line and advocate for the side that hired them.
Reasons for judgement were released today concluding that the orthopaedic surgeon hired by the Defence in a BC auto-injury case acted as an advocate.
In this case the Plaintiff was injured as a passenger in a 2003 collision.  The crash was significant.  The at fault driver was speeding, went through a stop sign and hit another vehicle head-on.
Just over $200,000 was awarded for the Plaintiff’s injuries and losses.  In reaching this decision Madam Justice Martinson made the following findings in rejecting the evidence of the orthopaedic surgeon hired by the Defendant to assess the Plaintiff’s injuries:

[52] In my view the evidence of Dr. Schweigel should be given limited weight.  He is no doubt a well-qualified orthopaedic surgeon.  However, his opinion with respect to causation is based to a large extent on incorrect and incomplete information.  His factual conclusions are, for the most part, inconsistent with the findings of fact made by the Court.

[53] Dr. Schweigel says in his report that (the Plaintiff) told him he had low back pain right after the accident.  He rejected that statement and focused on the fact that (the Plaintiff) had not complained to his doctor about low back pain until several months later.  For whatever reason, he did not have, then or later, the insurance adjuster’s notes showing that he had complained about low back pain shortly after the accident.

[54] In offering his opinion he downplayed the severity of the impact, though he agreed in cross-examination that the more severe a collision, the more likely is injury to the spine.  He did not comment on the fact that (the Plaintiff’s) activities were curtailed after the accident but not before.

[55] He drew inferences from the brief clinical notes of Dr. Alderson that supported the conclusion that the pre-existing low back pain was significant.  When summarizing the May 17th note, he put “less pain” when the note actually says “woke up in far less pain and is much more functional, bending without pain.”

[56] He was prepared to conclude, on very limited evidence, that the post accident incidents that were at issue likely caused the activation of the pre-existing condition.

[57] As I see it, Dr. Schweigel acted as an advocate for the defendants, not an expert whose sole purpose is to assist the Court.  He highlighted all matters that would support the defence position and either downplayed or ignored those that would support the position of (the Plaintiff).

ICBC Claims and the Seperation of Fault and Quantum

Written by admin on . Posted in Civil Procedure. 47 Comments on ICBC Claims and the Seperation of Fault and Quantum

While there are a host of issues involved in most ICBC injury claims (tort claims), the issues can be broken down into 2 broad categories 1. Who is at Fault (Liability) and 2. How much is the ICBC claim worth (quantum).
In a case where the issue of fault is hotly contested, is it possible to have that matter heard first before spending time (and in all likelihood a lot of money) presenting the medical evidence addressing the extent of injury?  The answer is sometimes.
Reasons for judgement were released today considering exactly such an application.
The Plaintiff was injured in a motor cycle accident in 2006.  He brought a personal injury claim.  He asked the court to determine the issue of fault ahead of the issue of quantum of damages.
Rule 39(29) of the BC Supreme Court Rules allows such an applicaiton, particularly it holds that:
39(29)  The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
Some of the factors a court will consider in such an application include the following:

a.         A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

b.         Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

c          Severance is most appropriate when the trial is by judge alone.

d.         Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

e.         A party’s financial circumstances are one factor to consider in the exercise of the discretion.

f.          Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

In today’s case, the application was dismissed.  Madam Justice Holmes of the BC Supreme Court held that:
[16]            Even if a case need not be exceptional to support an order for severance, it must disclose some compelling reason for such an order.  Compelling reasons must arise from the circumstances of the particular case.  Although I have considerable sympathy for Mr. Biggs’ personal situation, I find no compelling reason for separate trials of liability and damages.  Difficult though Mr. Biggs’ personal circumstances undoubtedly are, I am not persuaded that, in the context of the litigation as whole, they support a departure from the general practice by which all issues are determined in a single trial.
 

ICBC, Fraud and Jury Trials

Written by admin on . Posted in Civil Procedure, Jury Trials.

Reasons for judgement were released today dismissing a jury notice in an alleged case of Fraud against numerous defendants.
In this case ICBC was the Plaintiff.  ICBC argues that ‘the defendants conspired to defraud it through various claims relating to stolen vehicles and through a collision that it says was staged and it seeks, among other remedies, an award of punitive damages.’
ICBC elected to proceed by jury trial.  One of the defendant’s brought a motion to strike the jury notice.  After reviewing many of the leading authorities dealing with whether a jury notice should be struck pursuant to BC Rule of Court 39(27), Mr. Justice Hinkson granted the defendant’s motion holding that he shared the same doubts that Mr. Justice Mededith held when dismissing a jury in the United Services case, particularly that:

I doubt that the jury (especially unaided by the pleadings) would understand the significance of evidence as it goes in.  The length of the evidence (protracted by frequent intermissions by way of voir dire) and the variety of questions arising therefrom will be confusing.  The many questions to be put to the jury at the end of the trial will be difficult to formulate for intelligent analysis by the jury.  The speeches of counsel relating to those issues will be difficult to assimilate as will the judge’s charge and his review of the evidence

In sum, I conclude that a civil jury trial in the circumstances would be altogether unmanageable.  Add to the reasons I have given, the complexity of jury selection alone, and the difficulty of ensuring absence of prejudice in the light of the multiplicity of parties.

To permit the trial to proceed by jury would threaten to virtually paralyze the judicial process and deny the plaintiff and some defendants and third parties their rights.

More on ICBC Claims and Requests for Particulars

Written by admin on . Posted in Civil Procedure, Uncategorized. 62 Comments on More on ICBC Claims and Requests for Particulars

Reasons for judgement were released today addressing a request for particulars in a BC car crash case where the issue of fault was admitted.
The Defendants asked the Plaintiff to provide particulars for any claim for special damages and loss of earnings to date.  The Plaintiff refused and Defendant’s obtained a court order requiring the same.  The Plaintiff appealed and reasons from that appeal were released today.
Mr. Justice Walker dismissed the appeal and in so doing made a few findings addressing requests for particulars that should be of interest to ICBC injury claims lawyers:
First that ‘particulars can only be sought for the following purposes‘

(a)     to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(b)     to prevent the other side from being taken by surprise at the trial;

(c)     to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(d)     to limit the generality of the pleadings;

(e)     to limit and decide the issues to be tried, and as to which discovery is required; and,

(f)      to tie the hands of the party so that he cannot without leave go into any matters not included.

After canvassing several cases dealing with requests for particulars the court held that:

[32] In my view, providing particulars of the plaintiff’s wage loss and special damages’ claims in a case where liability has been admitted, particularly a routine bodily injury case, serves the purpose of the Rules of Court.

[33] This is a matter where the information sought has to be provided to the defendants at some point in time.  The documents relating to the claim for special damages should have been listed in the plaintiff’s list of documents.  They were not, and that is troubling.

[34] Delivery of the particulars sought may well shorten the time spent at examination for discovery, but most certainly failing to deliver them will prolong the discovery process.

[35] There is nothing in the Rules of Court stating that the particulars provided are meant to contain the final wage loss and special damages’ amounts.  The McLachlin and Taylor text states that particulars of special damages are to be provided as they become known; the textual commentary suggests to me that particulars of special damages should be delivered from time to time as they become known.  That makes good sense in a bodily injury case as special damages may only be known on an ongoing basis as the amounts are incurred.  Simply because some members of the Bar have fallen into the habit of providing particulars of special damages once, late in the day, is no answer to what the McLachlin and Taylor text says is good practice………

[44] I emphasize again that the information sought by the defendants has to be provided to the defendants sooner or later.  Here, the defendants seek that information at an early stage in the litigation.  The defendants admitted liability at the outset.  They wish to know the value of the claim.   The medical receipts should have been produced in the list of documents and were not.  Delivery of particulars may assist the defendants in their assessment and approach towards resolution of the claim.

A Busy Day – 3 Car Crash Cases Released by BC Supreme Court

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases, Uncategorized.

There is a lot to blog about today so I will have to keep these case summaries short.  The BC Supreme Court released 3 cases today that may be of interest to people advancing ICBC claims.
The first deals with the choice of forum of where to sue.  The Plaintiff was in a collision with a tractor trailer in 2007.  The crash happened in Alberta.  The Plaintiff lived in BC and the owner of the tractor trailer had a registered business office in BC.  The Plaintiff started the lawsuit in BC and the Defendant brought a motion that the case should be dismissed or stayed because the lawsuit should have been started in Alberta.
After summarizing the applicable law the court sided largely with the Defendants finding that:

[27] The purpose of this statement is encapsulated in British Columbia in s. 11(2)(f) of the CJPTA.

[28] I do not consider that as between British Columbia and Alberta there is no one forum that is not clearly more appropriate than the other. I am satisfied that, while there may be some advantage to the plaintiff in pursuing his claim in British Columbia, Alberta is the forum with the closest connection to the subject matter of the proposed litigation and that the facts upon which the proceeding against the non-resident defendant is based arise in that jurisdiction. I conclude that Alberta is clearly the more appropriate forum in which to litigate the proposed action.

[29] I was advised by counsel for the plaintiff that as yet there have been no proceedings commenced in Alberta. Neither counsel were able to advise me whether the plaintiff faced any statutory defences, such as a limitation defence, in Alberta. As there may be defences against the plaintiff’s claim in Alberta if proceedings are brought there which would not be available in British Columbia, I am not prepared to dismiss the plaintiff’s action in this jurisdiction.

[30] In the result, I will, however, direct that the plaintiff’s action in British Columbia be stayed, pending further order of this Court, should an action in Alberta be met with defences that are not available in British Columbia, or in the event that the plaintiff’s claim is resolved in Alberta.

________________________________________________________________________________

The second case released today dealt with Court Costs.  Typically when a case succeeds in Supreme Court the winner is entitled to court ‘costs’.  In theory this is to compensate the winner for having to trigger the judicial process to get whats fair.
After an 11 day trial as a result of a car accident the Plaintiff was awarded $81,694 in damages for injuries and loss.  In the trial the Plaintiff’s claim for past wage loss and cost of future care were dismissed.
The Defendant brought a motion asking the court to award the defendant ‘costs and disbursements for that portion of the proceedings ralted to the cloaims fr past income loss and cost of future care’ amongst other relief.  The motion was brought further to Rules 57(9) which states

Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders.

And rule 57(15) which states

The court may award costs that relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.

The court granted the motion stating that:

Analysis and Decision

[22] After analyzing the submissions of the plaintiff and the defendant, I reiterate that the plaintiff’s claims in this action were very exaggerated.  I am satisfied that the defendant has established that there are discrete issues upon which he succeeded at trial.  I agree that the defendant should receive his costs and disbursements related to the issues of past wage loss and the cost of future care and, conversely, that the plaintiff should be denied her costs and disbursements related to those issues.

[23] I also agree with the defendant that many of the witnesses testified entirely, or primarily, in relation to the two issues on which the plaintiff was unsuccessful.  I agree that the evidence of Mr. Scott, Mr. Parcher and Ms. Keller all concerned the issue of past wage loss.  In addition, much of Mr. Johnson’s evidence concerned an alleged lost employment opportunity.  I also agree, based on the clerk’s notes, that these witnesses accounted for approximately one day of trial.  In addition, I agree that half of the evidence of Mr. McNeil and the two reports submitted by Mr. Carson related to the claim for cost of future care, and that Mr. McNeil testified for more than one day and Mr. Carson for 45 minutes.

[24] Lastly, I am of the view that there was divided success in this action and I find that the apportionment of costs would therefore produce a just result.

Conclusion

[25] On the basis of the foregoing, I order that the plaintiff be denied her costs associated with two days of trial, and her disbursements associated with the issues of past wage loss and cost of future care, including the cost of care reports of Mr. McNeil and Mr. Carson.  In addition, the defendant is awarded his costs and disbursements for two days of trial.

________________________________________________________________________________________
The third case of interest released today dealt with a car accident from 2003 which allegedly caused severe psychological injuries.
The crash occurred at an intersection in Surrey.  The Plaintiff was turning left on a green light.  The defendant entered the intersection approaching from the Plaintiff’s left.  The Defendant had a red light.  The accident then occurred.  The Defendant was found 90% at fault and the Plaintiff was found 10% at fault for failing the see the defendant’s vehicle which was ‘there to be seen’
The most contentious alleged injuries were brain injury and Dissociative Identity Disorder (DID).  The plaintiff did seem to suffer from DID, the question was whether the car crash caused this.
The court made the following findings with respect to injuries:

[159] The accident caused the plaintiff’s PTSD, various soft tissue injuries, a pain disorder, depression, tinnitus, and a visual vestibular mismatch which results in dizziness.  The accident dramatically reduced her enjoyment of life and caused the loss of various amenities of life.  At the time of the accident, the plaintiff was a highly functional mother of three with an apparently limitless future.  In the aftermath of the accident, her life has been devastated.  She can no longer look after herself or her children.  She lives in an assisted living facility.  She is separated from her husband. Her future prospects are grim.

[160] While some of the plaintiff’s loss arises from her DID and is not subject to compensation, I find the plaintiff has suffered grievously as a direct result of the accident.  The accident clearly terrified her.  Much of her loss of enjoyment of life has been caused by her levels of anxiety and depression as she focused on what she could no longer do.  She was told that she had suffered a serious brain injury.  This led her to believe there was nothing she could do to improve her condition and contributed to her downward spiral.  Her tinnitus and dizziness are likely permanent.  The prognoses for her TMJ problems are guarded.  There is some optimism that her pain disorder will improve given her recent change in medication.  Similarly, over time her depression should respond to treatment.  Her PTSD, although serious in years immediately subsequent to the accident, now appears to be in partial remission.  Absent her DID, the plaintiff would now be on the road to recovery.  DID plays a major role in her present situation and limits, at least for the next few years, her future opportunities.

$150,000 was awarded for non-pecuniary damages (pain and suffering and loss of enjoyment of life)

Supreme Court of BC and Trial Costs

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 103 Comments on Supreme Court of BC and Trial Costs

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.
The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.
When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.
When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.
Rule 57(10) of the BC Supreme Court rules states that
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?
Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

BC Court of Appeal: Previous Settlements to be Deducted from Indivisible Injury Awards

Written by admin on . Posted in Civil Procedure.

Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
In this case the Plaintiff was injured in 2 separate car accidents. She was not at fault for either. The injuries in both were found to be ‘indivisible’ meaning that the injuries were ’caused or materially contributed to’ by both events.
The Plaintiff claimed damages for both crashes. She settled one claim for $315,000. She succeeded in her lawsuit against the other driver and had her injuries valued at about $400,000. The trial judge then went on to order that the settlement proceeds from the second accident ($315,000) must be subtracted from the $400,000 awarded at trial. This was so because the injury was ‘indivisible’.
Today the BC Court of Appeal upheld this approach. In particular the court made (or confirmed) several important findings:
If two torts were necessary causes of the injuries, liability for the loss resulting from those injuries may be apportioned based on fault, but each tortfeasor is responsible for the entire damage to which their tort materially contributed beyond the de minimus range ( I would imagine this does not hold true, however, in cases of contributory negligence)
Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
A “divisible injury” is one that has ‘no causal connection’ to a certain tort
An ‘indivisble injury’ is one that was ’caused or materially contributed to by a tort’
“concurrent torts” occur when their negligence combine to cause one injury and its consequential loss at the same time
“consecutive torts” occur when injury occurs from 2 torts which occurred at different times.
There is no valid policy reason to treat concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.
When dealing with ‘consecutive torts’ causing an ‘ indivisible injury’ the two causes of action are not separate: they are linked by the indivisible injury. That link brings into play not only joint and several liability but also the rule against double recovery.
The bottom line is that if you sue for an ‘indivisible injury’ and have already been partially or wholly compensated by one ‘tortfeasor’ for that injury, a subsequent tortfeasor can subtract the compensation amount from what he/she has to pay.

More on ICBC and "Independent Medical Examinations"

Written by admin on . Posted in Civil Procedure. 66 Comments on More on ICBC and "Independent Medical Examinations"

When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.
This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:
Rule 30 — Physical Examination and Inspection

Order for medical examination

(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

Subsequent examinations

(2) The court may order a further examination under this rule.

Questions by examiner

(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.

Order for inspection and preservation of property

(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.

Entry upon land or buildings

(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.

Application to persons outside British Columbia

(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.

On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.
What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.
Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:

      • *
        The court’s discretion must be exercised judicially on the basis of the evidence;
      • *
        A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
      • *
        A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
      • *
        A passage of time alone is not a sufficient reason to order a second examination;
      • *
        Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
      • *
        Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.

The overriding question is whether a second medical examination is required to ensure reasonable equality between the parties in their preparation for trial: Wildemann v. Webster.

Reasonable equality does not mean that the defendant must be able to match expert for expert and report for report: McKay v. Passmore.

In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.

When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.

When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.