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$70,000 Non-Pecuniary Damages Assessment for Patellofemoral Knee Pain

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


Reasons for judgement were released this week by the BC Supreme Court awarding $126,000 in total damages as a result of injuries and loss caused by a 2006 BC car crash,
In this week’s case (Poulton v. Inderbosch) the Plaintiff was injured when the Defendant ‘went through a red light‘ and T-boned the Plaintiff’s vehicle on her passenger side.  Fault was admitted by the Defendant focussing the trial on the value of the Plaintiff’s claim.
The Court heard competing evidence about whether the Plaintiff suffered a knee injury as a result of the crash.  Mr. Justice Sewell decided that the Plaintiff’s knee in fact was injured.  In awarding $70,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for the Plaintiff’s injuries the Court stated as follows:
[15] The plaintiff filed a medical/legal report of Dr. McKenzie, an orthopaedic surgeon.  He examined Ms. Poulton on September 14, 2009.  Dr. McKenzie is of the opinion that Ms. Poulton has ongoing left knee pain which is likely patellofemoral knee pain as well as ongoing pain in her neck and upper back.  In his opinion her symptoms are caused by the accident including a direct blow to her knee…
[21] I conclude that Ms. Poulton did injure her left knee in the motor vehicle accident on January 27, 2006…
[26] In this case, Ms. Poulton has suffered an injury which continues to trouble her more than four years after the accident.  Given the duration of Ms. Poulton’s symptoms and the inability of any of the treating physicians to isolate an organic cause for those symptoms, I agree with Dr. Mackenzie’s opinion that the prognosis for the resolution of Ms. Poulton’s pain is poor.  There is evidence that Ms. Poulton’s headaches have significantly improved since the date of the accident and there is therefore some reason to conclude that those headaches will continue to improve.  I am also mindful of the evidence that Ms. Poulton seems to be able to function with the assistance of medications.  On the other hand, Ms. Poulton has testified that the injuries have had a significant impact on the quality of her life, particularly with respect to her ability to pursue such recreational activities as hiking and aqua size. ..
[30] I conclude that an award of $70,000 is appropriate in this case to compensate Ms. Poulton for her pain, suffering and loss of amenities of life.  In assessing these damages I have taken into account that Ms. Poulton will likely seek symptomatic relief from medication for the reasons set out in paras. 50 and 51 of these reasons.
You can click here to read my archived posts of other recent BC Court Cases awarding damages for knee injuries.

ICBC Asks Court of Appeal to Address "Costs" Awards In Cases Worth Under $25,000

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 68 Comments on ICBC Asks Court of Appeal to Address "Costs" Awards In Cases Worth Under $25,000

I’ve written many times about the fact that the BC Supreme Court Rules give trial judges a discretion to award a successful plaintiff Court Costs even if the amount awarded falls in the Small Claims Court’s Jurisdiction.
Two recent cases were released today by the BC Court of Appeal demonstrating that ICBC is interested in having the circumstances in which these awards are made limited.
In the first case (Morales v. Neilson) the Plaintiff was injured in a BC Car Crash and sued for damages.  At trial he was awarded just over $12,000.  The trial judge went on to award the Plaintiff costs despite the fact that the judgement was for an amount within the small claims courts financial jurisdiction.  ICBC asked permission to appeal but this was refused with the BC High Court holding that the Judge appropriately applied the test for discretionary costs.
The second case, however, had the BC Court of Appeal more interested.  In this case (Gradek v. DaimlerChyrster Financial Services Canada Inc.) the trial judge awarded a Plaintiff under $10,000 in total compensation as a result of a BC collision.  The Court went on to award the Plaintiff costs.  (You can click here to read my summary of the trial decision regarding costs).  ICBC asked the Court of Appeal to intervene arguing that the trial judge was wrong in considering the ‘procedural advantages‘ available in the BCSC as factors which give a plaintiff ‘sufficient reason‘ to sue in that Court when the case is worth clearly less than $25,000.  The Court of Appeal agreed to hear the case noting that this is an important issue for ICBC. Specifically the BC High Court held as follows:

[7] The issue on which the appeal is sought to be brought is a pure issue of law. It is one of statutory construction, the question being the meaning of the words “sufficient reason” in the context of Rule 57(10). The language of Rule 57(10) does not, on its face, limit “sufficient reason” to a consideration of the anticipated quantum of damages.  Even so, while I would not describe the appellant’s case as a very strong one, it does seem to me that it is arguable that “sufficient reason” contemplates jurisdictional questions (particularly the quantum of damages), and not procedural advantages.  In my view, there is sufficient merit in the appeal to warrant a hearing before a division of the Court.

[8] The issue of how the Supreme Court is to determine whether a matter is brought in that court for “sufficient reason” is a matter of general importance in litigation, particularly given that the monetary limit for Small Claims Court has expanded to $25,000. There will now be a sizable number of cases that fall below the Small Claims limit.

[9] The case is of significance to the defendant in this matter; from a practical standpoint, it is an institutional defendant involved in many cases. The case is, however, of limited significance to the plaintiff.  While the costs award is a significant proportion of the entire award received by the plaintiff, the costs of defending the appeal may significantly exceed the amount in issue.

[10] This concern is mitigated, however, by the fact that the appellant is prepared to abide by an order that it will pay the respondent’s costs on Scale 1 in any event of the appeal (it is acknowledged that the respondent would be free to argue before the Court that a higher level indemnity should be awarded).

[11] In the circumstances, I am satisfied that leave ought to be grant and that a division of the Court should hear this matter. Leave is granted. The appellant will be responsible for the respondent’s costs in any event of the appeal.

I will be sure to write about the BC Court of Appeals decision in this case once it is released.

More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, Uncategorized. 55 Comments on More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

Jury Finds Driver Faultless for Going Through Stop Sign in Icy Conditions

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


I have written previously about the ‘invevitable accident‘ defence more accurately referred to as a ‘no-negligence‘ defence.  Today the BC Court of Appeal released reasons for judgement considering this area of the law in the context of a personal injury lawsuit that was dismissed by a BC Jury.
In today’s case (Bhangal v. Sloan) the Plaintiff was injured when his vehicle was struck by a pick-up truck driven by the Defendant.  The Defendant went through a stop sign without stopping.    His explanation was that he was not careless but rather could not stop due to the slope of the hill he was travelling down and ice on the roadway.  The Jury accepted this evidence and dismissed the Plaintiff’s claim finding that the Defendant was not careless in operating his truck.
The Plaintiff appealed arguing that the Jury was wrong and that their finding was one “no properly instructed jury could reach“.  The BC Court of Appeal disagreed and upheld the Jury dismissal of the personal injury lawsuit.  In reaching this conclusion the BC High Court reasoned as follows:

In Fontaine, the principle of res ipsa loquitur was put to one side as being no longer applicable in Canadian negligence law. It is no longer to be presumed that a car running off the road (or its loss of control) is attributable to the negligence of its driver. Rather, a case in negligence must be proven on both the direct and circumstantial evidence adduced, with effect being given to such inferences as the evidence properly supports.

[10] In Nason v. Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”

[11] Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.

[12] I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

[13] Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

[14] I would accordingly dismiss the appeal.

Plaintiff Awarded Double Costs for Beating Pre Trial Formal Settlement Offer; Relevance of ICBC Insurance Considered

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


In my continued efforts to track the judicial development of Rule 37B, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs for the trial of her ICBC claim.  The contentious issue of the existence of Insurance as a potentially relevant factor was also considered.
In today’s case (Pham-Fraser v. Smith) the Plaintiff was injured in a BC motor vehicle collision.  Before trial the Defendant (insured with ICBC) offered to settle under Rule 37B for $115,000.  The Plaintiff responded with a formal settlement offer of $149,000.  Neither party accepted the respective offers and proceeded to trial where the Court awarded just over $400,000 in total damages (click here to read my previous post discussing the trial judgement).
The Plaintiff, having comfortably beat her formal offer, asked the Court to award double costs under Rule 37B.  In granting the motion Mr. Justice Greyell held as follows:

[24] The second factor referred to in Rule 37B(6) also operates in the plaintiff’s favour.  There is a wide difference between the offer to settle and the final judgment.  The judgment is almost three times the amount offered.  The plaintiff’s offer was made because she wished to avoid court and having to give her evidence.  Some of her evidence was of a private nature relating to matters she did not wish to talk about in the public forum of a court of law (that is, how the accident affected her work and home life, her marital relationship with her husband after the accident, and the fact she suffered from incontinence).

[25] It is not necessary to consider factors set out in Rule 37B(6)(c) and (d).  I do not accept the plaintiff’s submission I ought to consider that the defendants, being represented by ICBC, are in a “sophisticated” position in terms of providing settlement instructions and that this is a factor to be taken into account and operate in the plaintiff’s favour in exercising my discretion under the rule.   The plaintiff’s argument seems to me to simply be another way of putting a “deep pockets” argument forward: an argument the courts have thus far rejected as being a factor to be considered in determining whether to award costs under Rule 37B.

[26] After considering the factors which I do consider relevant under Rule 37B, I conclude the plaintiff is entitled to an award of double costs.

As previously discussed, the BC Supreme Court is inconsistent on whether a Defendant being insured is a relevant factor under Rule 37B and clarity from the Court of Appeal would be welcome.  While more cases than not have held that insurance is not a relevant consideration it is not yet clear that this is correct.  If the law was settled it would assist lawyers in advising their clients of the potential risks and benefits of trial.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Personal Injury Claim Dismissed in "No Impact" Collision

Written by admin on . Posted in Uncategorized.

I’ve written dozens of times about Low Velocity Impacts where Plaintiffs are injured and compensated despite being involved in accidents with little to no vehicle damage.  But what about no impact collisions, can a Plaintiff be compensated if their vehicle is not struck at all?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Brooks v. Gilchrist) the Plaintiff was involved in 2 alleged motor vehicle collisions.  She sued for damages.  The first incident  occurred when the Plaintiff was stopped at a red light.  The vehicle next to hers was rear-ended by the defendant.  the Plaintiff “heard a loud sound and felt that she may have been hit as well“.  The Plaintiff claimed she was injured.
At trial the court heard evidence from ICBC estimators who inspected the various vehicles that was “no evidence of any damage or paint transfers or scrapes to the right fron of the (defendant vehicle) or the left back end of the (plaintiff’s vehicle)”.
Mr. Justice Sigurdson went on to find that there in fact was no collision and dismissed the Plaintiff’s claim for the first incident.  In reaching this conclusion the Court provided the following reasons:

[35] My conclusion on the evidence is that, in the first accident, there was no contact at all between the defendant’s vehicle and the plaintiff’s vehicle.  If any contact had been made, it would have been so minor that the vehicles would be touching, but I find, based on the evidence of the witnesses at the scene, that the vehicles were not touching after the collision.  If the vehicles were touching, the plaintiff would have made that observation at the time, rather than simply advancing the theory that the Beynon vehicle must have struck her car, a theory which she maintained until just before the trial.

[36] Further, the absence of any damage or mark or paint transfer or scuffing to the Neon or the right side of the Gilchrist truck supports the view that there was no collision between the Gilchrist vehicle and the plaintiff’s vehicle.  The Gilchrist vehicle had a tow hook at the front and the absence of damage from that also suggests the absence of any collision.  I have considered the possibility that braking might cause the tow hook to be lower, but the absence of any damage from the tow hook is consistent with the fact that there was no collision.

[37] The plaintiff was at best uncertain whether she was involved in an accident.  Perhaps the noise of a collision in her vicinity startled her and made her suspect that her vehicle had been contacted but I find on all of the evidence that it was not.  Her answer on discovery was accurate when she said: “I remember the sound more than the actual, like, feeling of the car moving.”

[38] The plaintiff’s case, at its best, is that there was a possibility that the defendant vehicle made contact with her vehicle.  However, the plaintiff has the burden of proof on that issue on a balance of probabilities, and has fallen far short of meeting that burden.

[39] Accordingly, because there was no collision involving the plaintiff, there can be no liability with respect to the first accident.

It is worth noting that while the above case failed because the court found there was no impact, there is no requirement in law for a Plaintiff to actually be struck by a vehicle in order to have a compensable claim.  This has long been recognized in ‘nervous shock‘ lawsuits.

Getting Your Time Estimate Right For Trial

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


Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2–day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

The "New" New BC Supreme Court Civil Rules

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

Regular visitors to this site undoubtedly know that the New BC Supreme Court Civil Rules come into force on July 1, 2010.  These will effect every ICBC and other Personal Injury Claim prosecuted in the BC Supreme Court.
The rules are being tinkered with before they come into force and earlier this month the Lieutenant Governor in Council approved Order No. 243 which makes some changes to the New Rules of Court.  On quick review these appear to be very minor.  Kristina Oldenburg of the Courthouse libraries of BC was kind enough to provide me with a link to a PDF document containing the actual amendments.
It is rumoured that there may be a further transitional provision addressing expert witness reports commissioned under the current rules for cases that will go to trial under the new rules.  This would be a welcome development because many expert reports that comply with the current rules will not comly with the new rule addressing expert opinion evidence.  It is not an understatement to say that it will cost tens of millions of dollars to update all of these reports.  This seems like an unnecessary and fixable expense.
I will continue to address this topic as further changes are made to the New Rules.

Humerus Fracture Non-Pecuniary Damages Assessed at $110,000

Written by admin on . Posted in ICBC Shoulder Injury Cases, Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, assessing damages for a comminuted fracture involving the left humerus (shoulder injury).
(Illustration provided courtesy of Artery Studios Ltd.)
Today’s case (Legault v. Brock Shopping Centre Ltd.) involved a slip and fall injury in 2005 in Kamloops, BC.  The Plaintiff was walking towards a business known as “Penny Pinchers” in Kamloops BC.  As he approached the shopping centre his foot slipped on ice and he stumbled forward falling “into the store front window“.  He suffered various injuries, the most serious of which was a fractured shoulder.
The Plaintiff was found 50% at fault for his own injuries for “not observing the ground conditions beneath his feet as he approached the sidewalk“.  The Defendant owner was also found 50% at fault for not clearing the ice with the Court finding that “the Defendant owner failed to respond to two calls from the tenant to address the condition of the parking lot.  Responding to one of these calls would likely have appraised the owner of the melting and freezing conditions that also affected the sidewalk margin area“.
The Plaintiff’s orthopaedic surgeon gave the following evidence with respect to the severity of the injury:
Mr. Legault slipped and fell through a plate glass window at a shopping mall. He sustained a number of small lacerations to his upper extremities and his lip which were sutured in the emergency department. The main impact occurred on his left shoulder and he was diagnosed with a proximal humerus fracture…Radiographs and CT scan performed December 6, 2005, revealed a comminuted intraarticular fracture of the proximal humerus with slight superior and posterior displacement of the greater tuberosity….
Mr. Legault has developed post traumatic arthritis of his left shoulder most probably secondary to a fracture sustained December 6, 2005. Although the symptoms of pain and stiffness due to arthritis may plateau, it is possible that he may experience progressive symptoms in the shoulder as time passes. As arthritis is an irreversible condition, Mr. Legault has a permanent impairment. He is likely to experience increased symptoms with repetitive activity, overhead activity, and activities which load the shoulder joint including use of vibratory tools or machinery, or heavy lifting. Surgical options for shoulder arthritis include arthrpacopy and debridement or hemi or total arthroplasty. The results of these procedures for post traumatic arthritis (as compared to degenerative osteoarthritis or rheumatoid arthritis, for example) are less favorable. In this particular patient, his complication rate would be significantly increased due to his size and longstanding diabetes.
The Plaintiff’s total damages were assessed at $354,311 but this award was cut in half to account for the plaintiff’s contributory negligence.  In assessing non-pecuniary damages of $110,000 for the Plaintiff’s shoulder injury the Court found as follows:

I am satisfied that he has suffered an injury that has resulted in a permanent partial disability and will permanently affect his enjoyment of life on a daily basis, causing him difficulty with self care hygiene, dressing, moving up and down stairs, marital intimacy, home maintenance tasks, and driving. The physical injury has also made it more difficult to manage his obesity and other health issues related to fitness. His wife testified that she feels as if she has lost her husband entirely.  He was formerly able to lift and carry heavy automobile components and use heavy power tools in the course of working on vintage cars, which was his main interest in life; but he is unable to do that and has lost much of his zest for life.

[51] The plaintiff has referred me to cases where non-pecuniary awards in the range of $125,000 to $150,000 were made and the defendant relies on cases in the range of $70,000 to $75,000. I assess Mr. Legault’s loss under this head of damages at $110,000, which is subject, of course to the 50/50 apportionment of liability, as will be the case with the awards under the remaining heads of damage.

More on Court Costs and "Sufficient Reason" For Suing in the BC Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, Settlement Law, Uncategorized. 50 Comments on More on Court Costs and "Sufficient Reason" For Suing in the BC Supreme Court

Further to my previous posts on this topic, if a Plaintiff successfully sues in the BC Supreme Court but receives damages below $25,000 they may be deprived of their court ‘costs’ unless they had ‘sufficient reason’ for choosing the Supreme Court over small claims court.
Two judgements were released this week by the BC Supreme Court discussing this area of law.  In this weeks cases (Spencer v. Popham and Spencer v. Horton) the Plaintiff was involved in 2 separate  BC car crashes.  She started separate lawsuits in the BC Supreme Court but settled her cases before they went to trial.  Both claims settled form amounts below $25,000 (the current financial limit of BC’s small claims court).  The Plaintiff and ICBC could not agree on the issue of costs.
ICBC argued that since both cases were in the small claims courts jurisdiction the Plaintiff did not have sufficient reason for suing in the Supreme Court.  Mr. Justice Punnett disagreed and awarded the Plaintiff costs in both claims.  In doing so he provided the following useful and through summary of this area of the law:

[8] Rule 57(10) of the Rules of Court states:

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.

[9] This rule encourages persons to bring actions in Small Claims Court when a claim falls within that court’s monetary jurisdiction. It is an example of “proportionality”; the judicial process should match the amount in dispute. However, the court must also respect a party’s “legitimate choice” of forum: Reimann v. Aziz, 2007 BCCA 448, 286 D.L.R. (4th) 330 at para. 35.

[10] The burden is on claimants to evaluate their claims prior to commencement and to justify their decision if they recover less than the Small Claims Court limit, currently $25,000:Reimann at para. 38. If plaintiffs fail to sufficiently investigate and assess their claims prior to commencement, they risk not recovering costs. In a personal injury action this may require plaintiffs to obtain medical records and medical reports, to gather evidence to support claims for loss of earnings and earning capacity, and to assess the evidence in support of the claims being advanced before commencing the action.

[11] However, as noted by Justice Savage in Gradek v. DaimlerChrysler Financial Services Canada Inc, 2010 BCSC 356 at para. 19, R. 57(10) contemplates the possibility that factors other than quantum must be considered:

[19]      The proviso in Rule 57(10) is “unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders”. The Rule does not define “sufficient reason”. There is nothing in the Rule that limits the extension of the term “sufficient reason” to matters relating to the quantum of the claim.

[12] Factors that can give rise to “sufficient reason” were set out in Kuehne v. Probstl, 2004 BCSC 865 at para. 22, and accepted in Icecorp International Cargo Express Corp. v. Nicolaus, 2007 BCCA 97, 38 C.P.C. (6th) 26 at para. 27. They include:

i. the legal or factual complexity of the case;

ii. the need for discovery of documents and examinations for discovery;

iii. the need for a judgment enforceable outside of British Columbia;

iv. a bona fide preference for a jury trial; and

v. access to the summary trial procedure available in Supreme Court.

Other factors can be the need for the plaintiff to have legal counsel (Faedo v. Dowell, 2007 BCSC 1985 at para. 36; Ostovic v. Foggin, 2009 BCSC 58 at para. 42; Gradek at para. 43), and the defendant’s denial of liability, causation, and injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate (Ostovic at paras. 39-40; Gradek at para. 35).

[13] Therefore, a plaintiff’s evaluation of his or her claim, can also involve an assessment of these factors. Even if the plaintiff assesses the claim to be within the jurisdiction of the Small Claims Court, the plaintiff can rely on these other reasons to commence the action in Supreme Court: Johannson v. National Car Rental (Canada) Inc., 2009 BCSC 1284 at para. 5.

[14] In my opinion, a plaintiff’s simple desire to retain counsel is not in and of itself a sufficient reason for commencing the action in Supreme Court. Other factors, such as those noted above, determine whether retaining counsel is justified.

[15] In Faedo, the plaintiff was in a low impact collision and suffered a soft tissue injury to her neck and back. Justice Vickers found that the case was not that complex and plaintiff’s counsel could not have considered ICBC’s original dispute of liability a serious threat to recovery. However, Justice Vickers concluded that it was reasonable for the plaintiff to have brought her claim in Supreme Court for two reasons: (1) when the action was commenced, the plaintiff believed she was suffering from the accident and her pleadings included a claim for loss of earning capacity and disruption of the ability to earn income; and (2) ICBC put her credibility seriously in issue when it took the position that she had not suffered from any injury or any significant injury. Justice Vickers continued at para. 36:

[36]      … I observed this plaintiff to be very nervous in court. She had no previous experience in court and in my opinion when she was confronted with a case where the defendant represented by counsel was suggesting that she hadn’t been injured at all and this was a low impact accident in which it was suggested she wouldn’t be injured, that the plaintiff reasonably required counsel to represent her and reasonably started an action in the Supreme Court where she could hope to recover some of the cost of retaining that counsel which was necessary for her to properly put her case to get the compensation I have found her entitled to. Furthermore, an offer to settle such as the plaintiff made in this case puts very little pressure upon a defendant to settle where there is no exposure to costs.

[16] In Ostovic, another case arising out of a low impact accident, Justice Savage noted that because the defendant denied liability, causation and special damages, the plaintiff had to prove these issues in court. Because of this, the plaintiff needed to avail himself of pre-trial discovery, which provided important evidence of the speed of impact, the consequences of impact and concern over the plaintiff’s condition. In addition, Justice Savage found at para. 42:

[42]      There is the additional factor that, as in Faedo and Kanani [v. Misiurna, 2008 BCSC 1274], the Plaintiff faced an institutional defendant which, in the ordinary course, has counsel. To obtain any recovery the Plaintiff is forced to go to court, where he is facing counsel and counsel is reasonably required, but in Provincial Court there is no way of recovering the costs of counsel.

[17] In Gradek, before the issuance of the writ, the defendants’ insurers had informed the plaintiffs that their position was the accident did not result in any compensable injury. In their pleadings, the defendants denied liability and injury or loss and alleged contributory negligence, the existence of a pre-existing injury and previous causes, and a failure to mitigate. There was a broad range of findings possible respecting liability. The plaintiff, Henryk Gradek, was a Polish immigrant who spoke halting English. Justice Savage found at para. 42 that “he would have had extraordinary difficulty presenting a case on his own” and would have been “out-matched” by either a lawyer or an ICBC adjustor. The plaintiff needed counsel to obtain a just result and, therefore, had sufficient reason to begin the action in Supreme Court.

[18] Plaintiffs do not have an ongoing duty to reassess their claims as the matter proceeds: Reimann at para. 44. Thus, the court must assess whether a plaintiff had “sufficient reason” to bring the action in Supreme Court when the plaintiff started the action: Ostovic at para. 35. This analysis is necessarily done with the benefit of hindsight since it only occurs after trial or settlement, but the court must be careful not to use that hindsight in deciding what was reasonable: Faedo at para. 28.

[19] It also must be remembered R. 57(10) “does not involve an exercise of discretion.” Rather, “the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court” (emphasis added): Reimann at para. 13.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.