Skip to main content

BC Court of Appeal Clarifies Law of Compensation for Injuries With Multiple Causes

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


Very important reasons for judgement were released today by the BC Court of Appeal making it easier for a Plaintiff involved in multiple not at fault traumas to be properly compensated for their injuries.
In today’s case (Bradley v. Groves) the Plaintiff was injured in 2 BC motor vehicle collisions.  The first happened in 2006.  She was not at fault.  She suffered from various soft tissue injuries which were recovering (but not recovered) when she was involved in a second collision in 2008.  She was faultless for this crash which aggravated the soft tissue injuries from the first crash.
The Plaintiff sued the motorist in the first crash.  The trial judge found that the injuries were “indivisible” and that the two crashes “were both necessary causes of the indivisible injuries“.  The trial judge valued the Plaintiff’s non-pecuniary damages of $30,000 for the entirety of her injury.  The Plaintiff was awarded damages for the whole amount with the trial judge stating that since the Plaintiff was not at fault for either event and since her injuries were indivisible this was the correct approach.  (you can click here to read the trial judgement)
The Defendant appealed arguing that the judge should have apportioned damages between the two crashes and only awarded the Plaintiff damages for the crash that she was suing for.  The Court of Appeal disagreed and upheld the trial judgment.  In doing so the Court clarified this important area of law which will now make it easier for not at fault Plaintiff’s injured through multiple events to be properly compensated for their loss.  The BC High Court provided the following useful reasons:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

Why a Driver Isn't Always at Fault For Losing Control

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 107 Comments on Why a Driver Isn't Always at Fault For Losing Control

If a driver loses control of their vehicle resulting in a collision causing you injury they will always be found negligent in a personal injury lawsuit, right?  Not necessarily.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Geiger v. Schmidt) the Plaintiff sued for compensation as a result of injuries she sustained in two BC motor vehicle collisions.  In the first crash the Plaintiff was a passenger in her own vehicle.    The vehicle was travelling on Highway 99 just South of Vancouver.  The posted speed limit was 100 kmph.  The road conditions were poor due to winter weather.  The driver slowed to 70 kmph to take this into account.  The Plaintiff asked the driver to slow further and put the vehicle into four-wheel drive.  Before the driver did so the “back end of the vehicle slid.  It spun 360 degrees, collided with the median, bounced off it, went into another spin and then struck it a second time“.
The Plaintiff was injured in this crash and sued for damages.  The driver argued that he was not at fault and did nothing careless.  Mr. Justice Brown agreed and dismissed the lawsuit.  In doing so he provided the following analysis:

[44]         In my view, given the fact the defendant was attuned to the conditions he was facing and had responded to them by lowering his speed by almost one-third, the negligence question in this case comes down to deciding whether he failed to exercise all reasonable care because he failed to comply with the plaintiff’s suggestion by lowering his speed and transferring the driveline to four wheel drive before he lost control. In other words, did exercising all reasonable precautions encompass disregarding his own assessment and complying with the plaintiff’s suggestion?

[45]         In some circumstances, reasonable drivers assessing driving conditions would consider the suggestions of passengers, especially when the driver is inexperienced or less familiar with the road then the passenger. In many cases, the passenger’s recommendation will correspond with the most objectively reasonable precaution.

[46]         However, the driver is ultimately responsible for assessing the objective conditions and responding in a reasonable way. In the circumstances of this case, I find the defendant’s failure to follow the plaintiff’s suggestion to slow down and transfer to four-wheel drive is not sufficient to satisfy the plaintiff’s burden of establishing the defendant was negligent.

[47]         Further, I heard no evidence of what speed would be low enough in the conditions the defendant was facing to prevent a loss of control and the spin outs that followed. There was no evidence to show that, had the defendant switched into four-wheel drive or reduced his speed, he could have avoided the accident. A judge can take judicial notice of the natural correlation between higher speed and decreased traction; but such common knowledge does not licence a leap from that to a conclusion the defendant likely would have avoided the accident if the plaintiff had agreed with the plaintiff and lowered his speed.

[48]         This is not a case of a driver ignoring passenger pleas to slow down while driving at a speed all reasonably cautious drivers would consider unsafe in the circumstances.

[49]         The standard of care is not perfection. There is no evidence the defendant was inattentive or indifferent to road conditions. His decision to delay transferring to four wheel drive until he felt ready doing so was not unreasonable. The vehicle was equipped with snow tires. The temperature was around 4 degrees centigrade. The defendant was exercising reasonable caution by driving a full 30 kph below the posted speed limit.

[50]         As in Nason, I find insufficient evidence to show the defendant in these circumstances was negligent: at best, the weight of the evidence hangs evenly in the balance. I find the plaintiff has failed to satisfy the burden of proof and so I must dismiss the plaintiff’s claim against the defendant.

Prior to dismissing the lawsuit Mr. Justice Brown canvassed several recent authorities which address fault in collisions where a driver loses control and the case is worth reviewing in full for anyone interested in this area of law.  You can also click here to read my archived posts addressing fault for BC crashes where a driver loses control due to road conditions or other hazards.

More on ICBC Injury Claims and "Sufficient Reason" to Sue in Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 49 Comments on More on ICBC Injury Claims and "Sufficient Reason" to Sue in Supreme Court

If a Plaintiff sues in Supreme Court but is awarded damages of $25,000 or less (the current financial limit of the BC Small Claims Court) the Plaintiff is not entitled to Costs unless they had “sufficient reason” for suing in the BC Supreme Court.
It is becoming reasonably well established that a Plaintiff has sufficient reason to sue in Supreme Court when the Defendant is insured with ICBC.  The reason being that the Defendant will likely be represented by a lawyer paid for by ICBC whether the claim is filed in Small Claims Court or the Supreme Court.  In these circumstances it is reasonable for a plaintiff to hire a lawyer to balance the playing field.  Since the Supreme Court allows costs orders to offset some of the legal fees our Courts have held on a few recent occasions that this creates a ‘suffient reason’ for Plaintiff’s to bring modest claims to trial in the Supreme Court.  Reasons for judgement were released today demonstrating this.
In today’s case (Zale v. Colwell) the Plaintiff was injured in a BC motor vehicle collision.  She sued in the Supreme Court.  At trial she was awarded just over $10,000 for injuries and losses.  Mr. Justice Harvey went on to award the Plaintiff costs despite the fact that the Small Claims Court could have heard the case.  The Court provided the following reasons:

[7]             None of the factors identified in Spencer have application here. The matter was not factually complex; it proceeded by judge alone; liability was admitted, obviating the need for examination for discovery by the plaintiff; the defendant resided within the jurisdiction; and, the matter did not proceed by way of summary trial.

[8]             As was noted in Spencer, the desire of the plaintiff to have counsel, alone, is not a sufficient reason, of itself, to depart from the underlying proposition stated in R. 57(10). In any event, the plaintiff was represented when the action was originally commenced in Provincial Court in 2006.

[9]             Lastly, the plaintiff says costs should be awarded owing to the fact the defendant, in effect ICBC, is an institutional litigant with rigid policies in low velocity collision claims such as this.

[10]         The defendant, while admitting liability, put the plaintiff to the strict proof of any damages whatsoever arising from the accident. That position did not change throughout the trial process. As in Spencer, I am left with the conclusion that but for the trial process, the plaintiff would be left without a remedy…

[13]         In each of the above three decisions, the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant,  a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.

[14]         Recognizing that the onus rests on the plaintiff to demonstrate sufficient reason to have raised the matter from Provincial Court to Supreme Court, I am not persuaded that the distinguishing factor noted by the defendant, that counsel was retained (albeit not the same counsel) for the Provincial Court proceeding, is sufficient to deprive the plaintiff of the costs of the proceeding under R. 66.

[15]         I conclude that in the circumstances, it was ultimately reasonable for the plaintiff to make the decision to have the matter heard in Supreme Court.

[16]         Accordingly, the plaintiff will have her costs pursuant to R. 66(29)(b).

I should point out that today’s case relied on BC Supreme Court Rule 57(10).  This rule has now been repealed and replaced with Rule 14-1(10) which reads identically to Rule 57(10) so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.  I should also point out that the BC Court of Appeal is expected to address the issue of sufficient reason for suing in the BC Supreme Court and provide further clarity and certainty to this area of the law.

My Interview with ILSTV: Damages for Charter Breaches

Written by admin on . Posted in BC Injury Claims Media Archives, Damages for Charter Breaches, Uncategorized. 59 Comments on My Interview with ILSTV: Damages for Charter Breaches

In what has proven a very popular topic, I’ve had the opportunity to discuss the implications of the Vancouver v. Ward case with News1130, The Dave Rutherford Show, and now with ILSTV.
I’d like to thank Julie Hawrishok of ILSCorp for providing me with the following clip:

Show Me the Money 4: 2009 ICBC Lawyer and Doctor Billings Released

Written by admin on . Posted in Uncategorized. 2 Comments on Show Me the Money 4: 2009 ICBC Lawyer and Doctor Billings Released


It’s that time of year again, ICBC has released their Statements and Schedules of Financial Information for 2009. (You can click here, here and here to read my previous 3 installments addressing this topic)
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 2009 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.
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.

Supreme Court of Canada Confirms Damages Can Be Awarded For Charter Breaches

Written by admin on . Posted in Damages for Charter Breaches, Uncategorized.


In what is one of the most important legal decisions in the 28 year history of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada released reasons for judgement confirming that Canadian Courts have the right to award financial damages for state actions that violate individuals rights under the Charter.
This decision (Vancouver v. Ward) creates a brand new right to ‘constitutional damages’ which is distinct from typical lawsuits for compensation.   The Court held that this legal remedy is important to ensure that Charter Rights are not “whittled away by attrition“.
In today’s case the Plaintiff was subjected to an unlawful strip search in 2002.  At trial he was awarded $5,000 for breach of his rights under the Charter.  The BC Court of Appeal upheld this award.  (You can click here for more background on the judicial history) The Supreme Court of Canada concluded that this was appropriate and set out the legal framework for when damages can be awarded for Charter breaches and the factors the Court should consider in determining the amount of damages.
The Chief Justice of the Supreme Court of Canada summarized the test of when damages can be awarded as follows:
[4] I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just.  The first step in the inquiry is to establish that a Charter right has been breached.  The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.  At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.  The final step is to assess the quantum of the damages.
The Court then provide the following summary of the factors Courts should consider in arriving at a dollar figure for Charter breaches:
[57] To sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct.  The award must be appropriate and just from the perspective of the claimant and the state.
I strongly urge everyone to read today’s case in full as the Court sets out extensive reasons of the justification for damage awards under the Charter, considerations when these are just, factors for when these should not be awarded, guiding principles in arriving at quantum and guidance on the form and procedure of these lawsuits.

$135,000 Non-Pecuniary Damages Awarded for Multiple Orthopaedic Injuries

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


(Illustrations provided courtesy of Artery Studios Ltd.)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.
Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) .   The Defendant was operating a pick-up truck.   The Plaintiff was operating a dirt bike.  The vehicles approached each other from opposite directions.  Both motorists gave evidence that the other was on the wrong side of the road as they approached.  Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other.  The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck.   The Defendant was found 90% at fault for the crash.
The Plaintiff suffered serious injuries including a fractured right ankle and right wrist.  Both of these required surgery.  The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries.  Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff.  In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:

[216]     The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.

[217]     The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.

[218]     He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.

[219]     I assess non-pecuniary damages in the amount of $135,000.00.

More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims


Further to my two recent articles discussing this topic (these can be found here and here) reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, demonstrating yet again the powerful impact out of court statements can have in an ICBC claim.
In today’s case (Aymont v. Capp) the Plaintiff sustained serious injuries in a 2004 BC motor vehicle collision.  She was driving a Mazda Protege and was exiting a gas station parking lot.  She intended on turning left.  As she entered the roadway the Defendant approached from her left hand side.  A ‘t-bone’ type of collision occurred.
The Plaintiff testified at trial that when the Defendant’s vehicle struck hers she was at a stop and her vehicle had not entered the roadway and was “two feet before the fog line“.  The Defendant disagreed and testified that as he approached the gas station the Plaintiff pulled her vehicle into his lane of travel leaving inadequate time to avoid the collision.
During trial the Plaintiff was confronted with various out of Court statements attributed to her where she discussed the collision.  These included statements given to ICBC, a police officer and a chiropractor.  These previous statements were summarized as follows by Madam Justice Gropper:

[9]             The day following the accident, May 15, 2004, Ms. Aymont went for treatment to her chiropractor’s office, Dr. Susan Holroyd.  She says that she felt dizzy and nauseous, disoriented and in a great deal of pain that morning.

[10]         Dr. Holroyd produced her clinical records, which included a “motor vehicle accident history” form.  Ms. Aymont says that she does not recall the form or filling it out.  She cannot recall if it is her handwriting on the form or not.  The handwritten notations (in italics)  on the form state, in relation to the accident:

State How Accident Happened in your own words.

I had stopped at the entrance of gas st. looked both ways saw no one and began onto road – was hit by a truck travelling very fast.

Where you stopped Yes/No?

No [circled]

Estimate your speed?

10 km/h

Brakes on Yes/No?

No [circled]…

[13]         Cst. Rudy Andreucci telephoned Ms. Aymont the day following the accident and they arranged to meet on Sunday, May 16, 2004 at the RCMP Detachment in Westbank.  Cst. Andreucci testified that the purpose of the meeting was to give Ms. Aymont a traffic violation ticket. Cst. Andreucci served a violation ticket on Ms. Aymont for a breach of s. 176(2) of the Motor Vehicle Act: emerging vehicle: failure to yield.  He noted on the reverse side of the ticket what Ms. Aymont said to him:

04-5-16 V.T issued at office dri Nancy Aymont advised she just didn’t see him.  She knows better-than go on without being sure….

[15]         On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file.  Another adjuster was assigned to Mr. Capp’s file.  Mr. Bonner said that he asked questions and typed the answers into the ICBC note taking system on his computer.  He prepared a sketch based on the information provided to him by Ms. Aymont.  In the statement Mr. Bonner recorded Ms. Aymont stating:

I looked to my right first, and then the left and Bartley Road was vacant, and I thought to myself how often does that happen on a Friday afternoon.  After looking right, then left, I looked right again, and that is the last thing I remember…  If the other driver wasn’t going so fast he probably could have stopped.  My husband drove the road the next day.  At the 50 km/h speed limit, and stopped without skidding before the driveway… I was knocked out and can’t say how far I pulled forward from the exit onto Bartley Road before being hit.

[16]         Ms. Aymont also provided a rough sketch showing where the vehicles were as she approached the exit.

[17]         Ms. Aymont does not recall saying “I can’t say how far I pulled out from the exit onto Bartley before being hit.”

[18]         Mr. Bonner produced a hard copy of the statement for Ms. Aymont to review.  She thought that the second page statement was “all mixed up.”  Ms. Aymont says she made certain corrections to the statement in handwriting.  The last sentence of the statement is “I have nothing to add to this statement, which is true to the best of my memory.”  Ms. Aymont signed the statement….

The Court ultimately rejected the Plaintiff’s evidence and accepted the Defendant’s.  This verdict was largely reached based on the Plaintiff’s prior statements.  Madam Justice Gropper gave the following useful reasons demonstrating the damage that can be done with ‘prior inconsistent statements‘:

[77]         Mr. Capp’s evidence that the Aymont vehicle was moving when he first observed it is consistent with the statements that Ms. Aymont made to her chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete, she says that she was not stopped and was moving at about 10 km/hour.  In her statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto Bartley Road before being hit.  All of these statements are consistent with the circumstances that Mr. Capp describes.

[78]         I find as a fact that Ms. Aymont was not stopped “well before the fog line”.  She was moving from the exit into the southbound lane of travel on Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was not on the brake.  She was not looking in the direction of the oncoming traffic, but was engaged in a conversation with her son Joel who was sitting in the passenger seat, and had turned her face toward him to talk about his drink.

[79]          Ms. Aymont did not yield the right of way to Mr. Capp who was the dominant driver. …

[82] In all of the circumstances, I find the plaintiff is 100% at fault for this accident.

This case is also worth reviewing for the Court’s discussion of the duties of expert witnesses.  Both the Plaintiff and the Defendant retained experts to give accident reconstruction evidence.  The Plaintiff’s expert was soundly criticized for giving evidence as an “advocate” instead of a neutral witness.  The criticism can be found at paragraphs 66-73.

BC Injury Law Podcast – Pre-Existing Conditions and Your Personal Injury Claim

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


This is my latest in a series of podcasts discussing topics of interest in BC personal injury lawsuits.
Today I address pre-existing injuries and how these can be relevant in assessing damages in personal injury claims.
You can listen by clicking on the following link:  bc-injury-law-blog-pre-existing-conditions
If you want to learn more about pre-existing conditions and their treatment in personal injury lawsuits you can click here to access my archived posts on this topic.
UPDATE:  Since initially uploading this podcast the BC Court of Appeal released important reasons addressing injuries with multiple causes.  You can click here to read my article discussing this important case.

A Lesson in Math: Winners and Losers in Personal Injury Lawsuits

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.


When a personal injury claim goes to trial there is a winner and a loser.  Who the winner is, however, is not always apparent by reading the Court judgement.  To know who the winner really is you have to know the behind the scenes formal settlement offers.
Reasons for judgment were released today demonstrating, yet again, the steep costs Plaintiffs can face when on the losing end of a BC personal injury lawsuit.
In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Before trial the Defendants made a formal settlement offer for $20,000.  The Plaintiff rejected this offer and went to trial.  After 10 days of trial a BC Jury awarded $2,200.  The Defendant was awarded ‘costs’ from the date of the formal offer onward.  (You can click here to read my summary of the costs judgement).
On the face of it the Plaintiff clearly lost because she was awarded far less by the Jury than the settlement offer.  But the full extent of the loss is far greater than the difference between $20,000 and $2,200.  The Plaintiff actually ended up owing the Defendant money for this result.  How much money?  Approximately $40,000.
You can read today’s judgment in full to see the types of items a losing litigant can end up owing the winning side to a lawsuit and to see just how quickly a ‘costs’ award can add up.
Today’s case helps illustrate an important point I’ve previously stressed.  Before a case goes to trial it is important to fully consider the potential risks and rewards including the significant toll a costs award can have.  Without knowing and weighing these risks it is very difficult to make an informed choice about whether to settle or proceed to trial.