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Waiting For Police Report Held Insufficient to Postpone Limitation Period in ICBC Claim

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


Section 6(4) of the BC Limitation Act states in part that a limitation period “does not begin to run against a plaintiff…..until the identity of the defendant…is known to the plaintiff“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this provision in the context of an ICBC Claim.
In this week’s case (Telus Corporation v. Araneda) equipment owned by Telus was struck by a motor vehicle causing $43,000 in damage.  They sued the party they alleged was responsible but did so nine days after the limitation period expired.
Telus argued that the running of the period should be postponed by several days under s. 6(4) of the Limitation Act because it took 18 days for them to receive the police report identifying the defendant.  Mr. Justice McEwan rejected this argument and dismissed the lawsuit.  In doing so the Court provided the following reasons:


[20] …. On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.

[21] In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.

[22] Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.

[23] It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.


UMP Arbitration Caselaw Summary: Non-Pecuniary Damages for Tibial Plateau Fracture

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC UMP Cases, Uncategorized. 49 Comments on UMP Arbitration Caselaw Summary: Non-Pecuniary Damages for Tibial Plateau Fracture

As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.
Sections 148.1 – 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   The law requires all UMP decisions from 2007 onward to be published on ICBC’s website.  These cases, unfortunately, are published in PDF Format and they are not search friendly.  To remedy this I’ve decided to include UMP case summaries on this blog.  With that in mind here is the first in a series of UMP cases summaries.
The first UMP judgement published was RAH v. ICBC.  In RAH the Claimant was injured in a 2002 motor vehicle collision.   Fault was admitted.  It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.

The Claimant suffered a comminuted fracture of the left medial and tibial plateaus.  These required surgical correction.   Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“.   The prognosis was for gradual worsening with a likelihood of a total knee replacement.   It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons:
The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee.  He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware.  He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later.  He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done.  He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion.   He cannot return to his former occupation as industrial nurse/medic.  He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain.   He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain.   He continues to use a cane.  Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required.  The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping.  These activities except in a most limited and superficial manner, are now foreclosed to him…
…I assess the non-pecuniary damages at $95,000.
I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.

$140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 63 Comments on $140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages following a 2005 motor vehicle collision.
In this week’s case (X v. Y) the Plaintiff was an RCMP officer.  (Supplemental reasons were released permitting the Plaintiff to identify himself by initials and to seal the Court file given the Plaintiff’s undercover work).  He was responding to an emergency call.  He was travelling on his motorcycle when he was struck by a truck driven by the Defendant who was in the course of making a U-turn.  Although fault was put at issue the Court found the defendant fully liable for the collision.

The Plaintiff suffered a burst fracture at the T-12 level which required surgical intervention.  He suffered from chronic pain following this and although he was able to return to police work he could only do so in a more administrative (as opposed to front-line) capacity.  In assessing non-pecuniary damages at $140,000 Madam Justice Dardi provided the following reasons:
[101] The plaintiff underwent surgery on July 21, 2005, after which Dr. D. explained to the plaintiff that he had a burst fracture in his vertebrae in the thoracolumbar region, and that metal rods, clamps and screws had been placed in the area to fuse the spine together. The plaintiff was fitted with a clamshell brace in order to stabilize his fused spine and prevent him from moving. He was not allowed to sit or stand up unless he was wearing this brace. He used a walker to manoeuvre around the hospital. After physiotherapy treatments, he was able to walk short distances, go to the bathroom, and get in and out of his hospital bed. He was released from the hospital on July 27, 2005…
[147] It is uncontroversial that the plaintiff suffered a serious injury in the accident: a fractured spine which required surgical fusion with metal instrumentation. The medical evidence clearly establishes that he is permanently disabled insofar as repetitive heavy bending, lifting and high-impact activities. He has an increased risk for the development or acceleration of degenerative disc disease and is at an increased susceptibility for reinjuring his back…




[163] In summary on this issue, I find that the plaintiff’s symptoms are genuine. He regularly experiences varying degrees of pain and significant stiffness, tightness, and spasms in his back. The cold exacerbates his symptoms. He will continue to experience episodic aggravation of his symptoms. He is at an increased risk of developing degenerative arthritis and he has an increased susceptibility for further injury to his back. He also faces the possibility of another surgery to remove the hardware in his back. He has reduced stamina and tires much more easily than prior to the collision. I also conclude that as the plaintiff ages, there is a substantial likelihood that his pain and discomfort will increase because he will not be able to maintain the same level of conditioning in the muscles supporting the fused area of his back.

[164] In terms of his career, the preponderance of the evidence clearly supports a finding that the plaintiff is not fit to perform the full range of policing duties. He must avoid impact activities and any risk of physical altercations with suspects, which restricts him from participation in front-line policing duties. He can no longer perform the duties of a motorcycle officer, nor is he able to pursue his ambition to join the ERT as an operational member…




[179] While the authorities are instructive, I do not propose to review them in detail, as each case turns on its own unique facts. Having reviewed all of the authorities provided by both counsel, and in considering the plaintiff’s particular circumstances, I conclude a fair and reasonable award for non-pecuniary damages is $140,000.

Show Me The Money 5: 2010 ICBC Doctor and Lawyer Billings Released

Written by admin on . Posted in Uncategorized. 155 Comments on Show Me The Money 5: 2010 ICBC Doctor and Lawyer Billings Released


Its hard to believe this is my fifth installment of this series but its that time of year again.   ICBC has released their Statements and Schedules of Financial Information for 2010.  (You can click here, here, here, and here for my previous 4 discussions of this topic).
As discussed last year, this annual report contains a lot of interesting information.  None more so than the billings of “Suppliers of Goods and Services“.  Some of the Suppliers of Goods and Services are Lawyers and Doctors.  If you browse through this annual report you can see just how much any given lawfirm or doctor has been paid by ICBC in the 2010 Calendar Year.
ICBC routinely uses the services of a handful of doctors.  A quick look through this data reveals just how profitable the “Independent Medical Examination” business really can be.  Here are some highlighted reported ICBC doctor billings for 2010:
Dr. Paul B Bishop:  $366,226
Dr. Marc R. Boyle:  $122,207
Dr. K.M.W. Christian:  $95,752
Dr. I. G. Dommisse $236,550
Dr. Kenneth J Favero:  $304,731
Dr. Martin P. Grypma:  $304,375
Dr. H. E. Hawk:  $269,908
Dr. Duncan M. Laidlow: $104,082
Dr. Jordan M. Leith:  $198,058
Dr. Alexander Levin:  $426,744
Dr. Stephen Maloon:  $396,591
Dr. R. W. McGraw:  $387,600
Dr. Duncan McPherson:  $163,153
Dr. Alexander Moll:  $147,239
Dr. T. O`Farrell:  $113,595
Dr. N. K. Reebye:  $251,155
Dr. Peter M. Rees:  $232,338
Dr. J. F. Schweigel:  $324,271
Dr. O. M. Sovio:  $290,427
Another provider of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract (known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

More on Court Ordered Medical Exams and Travel

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 47 Comments on More on Court Ordered Medical Exams and Travel


Further to my previous posts on this topic (which you can find here and here) further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, addressing defence medical exams and the issue of travel.
In today’s case (Breberin v. Santos) the Plaintiff was injured in a motor vehicle accident.  The Defendants wished to send her for a medical exam.  The Plaintiff lived in Edmonton and argued that the exam should take place there.  The Defendants applied for a Court order to compel an exam in Vancouver.  In opposing the application the Plaintiff produced evidence from her doctor stating that “she is unable to travel….at the present time or in the forseeable future“.
Mr. Justice Willcock was not satisfied with this medical evidence and ordered that the exam take place with the Defendant’s chosen expert in Vancouver.  In doing so the Court provided the following reasons:




[5] The argument made by the parties is, first, for the defendants, that the defendants are entitled pursuant to Rule 7-6 to obtain an order requiring the plaintiff to attend at a medical examination and that the test to be addressed by the court in determining where and when the examination should take place is fully and accurately described by Master Bouck in the decision of Parsons v. Mears, 2011 BCSC 397.  In that case, the court says that the following principles are applicable to the question whether a plaintiff should be examined within British Columbia:

a.         The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant …

b.         Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person …

c.         Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: …

d.         It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee …

[12] In my view, the logic of Master Bouck set out in the Parsons case is applicable both in relation to independent medical examinations within and outside British Columbia.  I am of the view that the plaintiff’s convenience should be considered in determining where the independent medical examination should take place.  I am also of the view, however, that the onus should fall upon the plaintiff to show that there is a reason to depart from the general rule that the defendants are entitled to choose the expert who should conduct the independent medical examination on their behalf.  Here, the plaintiff should be required to show some justification for requiring that the independent medical examination should take place in Edmonton.

[13] As I noted when I referred to the affidavit filed by the plaintiff in response to the application, there is very little evidence with respect to the nature of the medical problem that will prevent the plaintiff from attending at an independent medical examination.  The independent medical examination is scheduled in the relatively distant future, on July 8, 2011.  There is, in my view, sufficient time for the plaintiff to prepare and make careful arrangements to attend at that examination in July.  This is not a case where the independent examination is set late in the day or in circumstances that prevent the plaintiff from making appropriate arrangements so as to make it convenient for her to attend.

[14] I am not satisfied on the evidence that the plaintiff has established that there is any reason that justifies an order that she should be examined in Edmonton as opposed to Vancouver.  There is, on the other hand, considerable advantage to the parties in having the independent medical examination being conducted in Vancouver in that the expert will be available to attend at trial if required to do so and readily available for cross-examination.  Because the case is set for trial in Vancouver, I am of the view that it is in the interests of justice in this case to order that the independent medical examination take place here.  I am not satisfied on the evidence there is any reason to depart from the Rule that the defendant should be entitled to choose an appropriate expert to conduct the examination so as to put the parties on an equal footing.




Interest on Disbursements: The Uncertainty Continues

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

The BC Court of Appeal released reasons for judgement today in a case addressing the recoverability of interest on disbursements in personal injury lawsuits.  It was anticipated that the Court would set out a firm answer to this issue.  Unfortunately the question remains unanswered as the BC Court of Appeal held that “this is not the right case to address the issue“.
In today’s case (Milne v. Clarke) the Plaintiff was injured in a motor vehicle collision.  The case settled but following this the parties could not agree whether the interest charges on disbursements for private MRI’s were recoverable.  Ultimately Mr. Justice Burnyeat held that this was a recoverable disbursement finding as follows:
[9] The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.  In order to obtain the M.R.I., it was necessary to pay not only the $975.00 cost but also the interest on any unpaid balances that were not paid immediately.  The cost plus interest was the cost of obtaining the M.R.I.  The claim for interest should have been allowed.
ICBC appealed this as a test case hoping to get a firm answer from the BC Court of Appeal.  The Appeal was dismissed with the Court finding that there was insufficient material before them to address the issue.  The Court provided the following reasons:





[13] There is, as Mr. Justice Frankel observed, divergent authority on the recoverability of interest on disbursements under Rule 57(4) (now Rule 14-1(15)).  There may be different answers to that question depending upon the circumstances of the charge, the time and purpose for which the charge was incurred, and the circumstances that caused counsel to pay the bill, but this must be a question for another case.  It is clear from the fresh evidence that in this case the recoverability of the interest paid by counsel requires an interpretation of the settlement agreement.  One question is whether the amount in issue is properly characterized as a claim for special damages rather than disbursement, and is thus captured within the agreed sum.  Another question is whether, on a correct interpretation of the settlement agreement, the amount in issue is recoverable as “a necessary and reasonable disbursement”.  The judge, having been presented with the case as an application of Rule 57(4), did not deal with either of these issues.

[14] To look at it another way, it was intended that this appeal would be concerned with the recoverability of interest as a disbursement under Rule 57(4).  On the material before us, the case turns on the characterization of the charge as a disbursement or special damages, and the interpretation of several terms of the settlement agreement, on only one of which the law on Rule 57(4) might be a reference point, and even there is not directly engaged.

[15] In our view this is not the right case to address the issue raised in the leave application.  While that issue is of interest to the profession, its answer must await a case that directly engages the rule, in the context of a proper factual matrix rather than a hypothetical.






Sexual Assault and Vicarious Liability Claims are not "Too Complex" For a Jury

Written by admin on . Posted in BCSC Civil Rule 12, Sexual Assault Civil Cases, Uncategorized.

Useful reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, addressing a jury strike application in a personal injury lawsuit for damages from sexual abuse.
In the recent case (JG v. Kolesar) the Plaintiff was sexually abused by her teacher.  He was criminally convicted for his acts.  The Plaintiff sued him and his employer for damages alleging negligence and vicarious liability on the part of the School District.  The matter was set for trial by jury.  The School District opposed this and brought an application to strike the Jury Notice under Rule 12-6(5) arguing that  “the law on the questions of causation (the concept of indivisible injury), vicarious liability, and assessment of damages is all too complex for a jury to understand”
Master Bouck disagreed and dismissed the School District’s jury strike application.  In doing so the Court provided the following helpful reasons:
[31]  On the question of causation, damages and the concept of indivisible injury, some authorities cited by (the School Board’s lawyer) have since been refined by the court of appeal’s decision in Bradley v. Groves, 2010 BCCA 361.  Notably, the appellate court has refined the method by which a finder of fact can determine causation and apportion damages where there are multiple tortfeasors contributing to the plaintiff’s injury and loss.
[32]  In my view, the step-by-step analysis set out in Bradley v. Groves can be nicely imported into a set of instruction and questions for the jury.
[33]  Accordingly, I am not at all pessimistic about the jury’s ability to decide the questions which the defence says are too complex in this litigation.  A trial judge will be perfectly capable of instructing a jury on the relevant legal concepts of causation, apportionment of damages, and vicarious liability…
[35]   Once properly instructed, the assessment of the plaintiff’s damages is most certainly not a question beyond the capability of a modern jury.  In my observation and experience, juries are often called upon to assess damages where there are multiple tort-feasors and pre-existing conditions.
Today’s case is unpublished however, as always, I’m happy to share a copy of the reasons for judgement with anyone who contacts me and requests a copy.

Amending Pleadings and the New Rules: The Low Threshold Continues

Written by admin on . Posted in BCSC Civil Rule 6, Uncategorized. 128 Comments on Amending Pleadings and the New Rules: The Low Threshold Continues


Rule 6-1 deals with amendments to BC Supreme Court pleadings.  Unless the opposing parties consent, once a trial date is set pleadings can only be amended with permission from the Court.  Authorities under the former Rules of Court established a very low threshold for obtaining a Court’s permission.  The first case I’m aware of dealing with this issue under the New Rules was released last week by the BC Supreme Court, Vancouver Registry, confirming that the law remains unchanged.
In last week’s case (TJA v. RKM) the Defendants wished to amend their pleadings by raising the defences of absolute and qualified privilege.  The Plaintiff opposed arguing they would be prejudiced if the amendment was permitted as the lawsuit was mature with examinations for discovery complete.   The Court permitted the amendment and remedied the prejudice raised by the Plaintiff with a costs order.  In reaching this result Madam Justice Maisonville confirmed the law remains unchanged under the new rules and provided the following reasons for judgement:









[12] Rule 6 – 1 (1) (b) (i) provides:

Rule 6-1 — Amendment of Pleadings

When pleadings may be amended

(1) Subject to Rules 6-2 (7) and (10) and 7-7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before the earlier of the following:

(i) the date of service of the notice of trial, and

(ii) the date a case planning conference is held, or

(b) after the earlier of the dates referred to in paragraph (a) of this subrule, only with

(i) leave of the court, or

(ii) written consent of the parties of record.

[13] In Langret Investments v. McDonnell, BCCA March 18, 1996 C.A. 020285 Vancouver Registry, Rowles J.A. for the Court, considering the predecessor rule to 6-1(1)(b)(i), held:

Rule 24(1) of the Rules of Court of British Columbia allows a party to amend an originating process or pleading.  Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless.

[14] The rationale for allowing amendments is to enable the real issues to be determined.  The practice followed in civil matters when amendments are sought fulfills the fundamental objective of the Civil Rules which is to ensure the “just, speedy and inexpensive determination of every proceeding on the merits”. (See also McLachlin and Taylor, in British Columbia Practice, 2d ed. looseleaf (Butterworths, 1991) pages 24-1 to 24-2-10, and the decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10).









$90,000 Non-Pecuniary Damage Assessment for Headaches and PTSD

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC PTSD Cases, Uncategorized.


Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:
[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…




[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.





This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:
[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

Plaintiff 50% At Fault for Running Yellow Light

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

As the BC Court of Appeal recently confirmed, there is a range of possible splits of fault following many intersection collisions.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this frequent type of collision.
In last week’s case (Ziani v. Thede) the Plaintiff was involved in a 2006 accident in Vancouver, BC.  He was travelling west on Kingsway.  As he approached the intersection of Boundary Road the light turned yellow.  He increased his speed to run the light.  At the same time the Defendant was approaching from the opposite direction on Kingsway making a left hand turn onto Boundary.  The Defendant testified that he had an advance green arrow although this evidence was not accepted with the Court finding that the Defendant was faced with the same yellow light that the Plaintiff had.

Madam Justice Bruce found that both motorists were equally to blame and in doing so provided the following reasons for judgement:




[24] On the facts of this case, the plaintiff entered the intersection on a yellow light and thus cannot be said to have the right of way. I am also satisfied that the defendant did not have an advance green light in his favour when he was attempting to turn left. Given the timing of the light sequences, and the evidence of the two independent witnesses, it would have been impossible for the defendant to have faced a green light when he was attempting to turn left. Had the defendant faced an advance green turn signal, the witnesses would not have seen a red light for oncoming east/west traffic at the time of the collision. Next in the sequence would have been a green light for through traffic on Kingsway. Moreover, Ms. Gjerding clearly testified that the defendant’s blue van was stopped in the left turn lane waiting for the through traffic to clear. This evidence is inconsistent with the defendant having the right of way with an advance green light.

[25] Thus on the facts of this case, the competing duties described in ss. 174 and 128 of the Motor Vehicle Act are squarely in issue. The burden of proof described in Dawes is not applicable where neither of the drivers had a presumptive right of way. Instead, the Court must examine the conduct of each driver to determine if they complied with their respective duties under ss. 174 and 128 of the Motor Vehicle Act…




[27] In my view, it is apparent that the plaintiff decided to increase his speed and “run” the yellow light in contravention of s. 128 of the Motor Vehicle Act in order to avoid the red light. It was only coincidental with the light turning yellow that he saw the defendant’s vehicle. It was not the presence of the defendant’s vehicle that led to the plaintiff’s decision to increase his speed in order to avoid a collision…

[29] In this case, however, I find the defendant did not assess whether the plaintiff was an immediate hazard or not when deciding to proceed with the left turn. Instead, the defendant wrongly assumed that he had the right of way due to the presence of an advance green signal. Instead of focusing on the oncoming traffic and any potential hazards created by those drivers, the defendant concentrated on ensuring there was no cross traffic or pedestrians in the crosswalk while he turned left. He looked left, then right, then left again before he looked ahead at oncoming traffic. By this time it was too late because the collision had already occurred. In my view, the defendant neglected to take the proper steps to ensure there was no oncoming traffic before he proceeded into the left turn. In this regard, I find the facts of this case are similar to those in Shirley where Mackenzie J. (as he then was) concluded that both drivers were at fault, the oncoming driver for running a yellow light and the left turning driver for proceeding into the turn when her view of the intersection and the oncoming traffic was partly blocked.

[30] For these reasons, I find that both the plaintiff and the defendant are at fault and their respective negligence both contributed to the accident. The degree of fault does not differ significantly. The defendant proceeded into a left turn without keeping a lookout for oncoming traffic due to his mistaken assumption that he had an advance green light. The plaintiff was equally at fault for increasing his speed and attempting to travel through the intersection before the light turned red and following an established amber. Accordingly, I find the plaintiff and the defendant each 50% responsible for the accident.