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ICBC Hit and Run Injury Claims and Intentional Torts

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When a person is injured in a hit and run accident where the identity of the at fault motorist is unknown ICBC can be sued directly for compensation provided that s. 24 of the Insurance (Vehicle) Act is complied with.
When dealing with insurance coverage issues, there often are exclusions in coverage for claims involving intentional torts.  (at the risk of oversimplification and intentional tort is an act which caused harm through an intentional deed as opposed to a negligence claim which deals with harm caused through carelessness).  Does this insurance exclusion apply to ICBC claims under section 24?  Reasons for judgement were released today by the BC Court of Appeal addressing this issue.
In today’s case (Hannah v. John Doe) the Plaintiff was injured in a purse-snatching incident.  As she was walking in a parking lot a vehicle drove by, the passenger in the vehicle ‘reached out and grabbed her purse strap and, as the van accelerated away, the plaintiff was thrown backward and dragged until her purse ripped‘.
The assailants remained unknown and the Plaintiff sued ICBC directly for her injuries under section 24.  ICBC sought to dismiss the lawsuit arguing that section 24 does not cover claims for intentional torts.  ICBC’s motion was dismissed at trial.  (click here to read my article summarizing the trial judgement) ICBC appealed advancing many of the same arguments rejected by the trial judge.
The BC High Court dismissed the appeal and in doing so provided the below reasons making it clear that s. 24 can be triggered in an intentional tort claim:
[15] One of the flaws in ICBC’s argument is that it makes no distinction between cases in which a claim for damages is advanced against an “at fault” motorist and cases in which the insurer seeks to recover from its insured the damages paid to a claimant based on an insured’s policy breach involving intentional or criminal acts.

[16] As noted above, s. 24(1) permits an action to be brought against ICBC as nominal defendant representing unidentified owners and drivers, thus affording a remedy to drivers and passengers in vehicles and to pedestrians who suffer damage where a remedy would not otherwise exist.  In Chan, Finch J.A., as he then was, held that both intentional and negligent acts could constitute “the cause of action” in a claim for damages arising out of the use or operation of a vehicle under s. 23 (now s. 24) .  In that regard, he noted, at para. 22:

I observe that s. 23 does not require proof that the injury arises out of the negligent use or operation of a motor vehicle.  It requires only that the plaintiff establish “a cause of action” against the driver (or owner) and that the injury arises out of the use or operation of a motor vehicle.  It is clear on this language that if the driver of the unidentified vehicle were proven to have intentionally driven his vehicle into collision with the plaintiff’s vehicle, the plaintiff could bring a claim under s. 23.

…

[25] While Citadel disapproved the reasoning in Chan in relation to the causation issue, Citadel supports the reasoning and conclusion in Chan that damage caused by an intentional or criminal act is not for that reason excluded from coverage.  That is apparent from what Binnie J. said at paras. 17-18 of Citadel:

[17]      The appellant insurer seeks to restrict coverage in arguing, for example, that in this case, indemnification should be denied because Farmer used “the vehicle for the purpose of getting weapons to the scene of a crime”, and “it is that kind of situation that should not fall . . . within the meaning of ordinary and well known activities” (transcript, at p. 18).

[18]      I am unable to agree.  Firstly, even if transporting rocks across the countryside had been the effective cause of the Vytlingams’ injuries, which it wasn’t, transportation is what motor vehicles are for.  The fact that transportation in this case was for a criminal purpose no more excludes coverage than the fact that Farmer may have been driving his vehicle on the night in question while impaired.  Innocent drivers (or pedestrians) should not be denied indemnity if struck by (to give a further example) a getaway car “transporting” bank robbers from the crime scene.  In all these cases, the tortfeasor, regardless of his or her subjective reasons for climbing into the car, is at fault as a motorist.

[26] The same point was reiterated by Binnie J. at para. 23:

Thirdly, to be quite explicit, I would reject the position … that … coverage can be denied if the tortfeasor is engaging (as here) in criminal activity.  This is not so.  The insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example.

For the foregoing reasons, I would not accede to ICBC’s argument that s. 24(1) of the Act is restricted to cases in which the cause of action is based in negligence.

Privacy Rights – Personal Injury Claims and Your Computer Hard Drive

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on Privacy Rights – Personal Injury Claims and Your Computer Hard Drive


A developing area of law is electronic discovery.
In the personal injury context the BC Supreme Court Rules require relevant, non privileged documents to be disclosed to opposing counsel.  The definition of document includes “any information recorded or stored by any means of any device“.  So, if there is relevant information, be it printed, on a computer or even on a cell phone, discovery needs to be made in compliance with the Rules of Court.
In recent years electronic documents have been the subject of court applications and Insurance companies / Defendants have sometimes been successful in gaining access to a Plaintiff computer’s hard drive.  Reasons for judgement were released today by the Supreme Court of Canada discussing court orders for the seizure of computer hard drives.
Today’s case (R v. Morelli) dealt with a criminal law matter.  However the Canadian High Court’s reasons may be of some use in the personal injury context.
By way of background the Defendant was charged with a criminal code offence.  One of the reasons for the charges was evidence that was apparently obtained from the Defendant’s computer which was seized pursuant to a search warrant.
The Defendant was convicted at trial.  The Supreme Court of Canada, in a very close split decision (4-3) overturned the conviction on the basis that the search warrant never should have been ordered because there were no reasonable and probable grounds to issue it.
While this case strictly dealt with criminal search warrants and the necessary evidence to obtain one, the Canadian High Court made some very strong comments about the intrusive effects of computer searches and this reasoning very well may have persuasive value for Courts considering whether they should give insurance companies access to Plaintiffs computers.  Specifically the Supreme Court of Canada provided the following comments:

[1]   This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  And it was authorized on the strength of an Information to Obtain a Search Warrant (“ITO”) that was carelessly drafted, materially misleading, and factually incomplete.  The ITO invoked an unsupported stereotype of an ill-defined “type of offender” and imputed that stereotype to the appellant.  In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time…

[105] As I mentioned at the outset, it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer.  Computers often contain our most intimate correspondence.  They contain the details of our financial, medical, and personal situations.  They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet. ..

[111] The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause.  To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

When considering whether a Defendant should be allowed access to a Plaintiff’s computer in a personal injury lawsuit I should point out that the New BC Supreme Court Civil Rules will change the scope of documents that need to be disclosed.  Specifically, the test for what documents are discoverable will be altered.

Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.

This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
I will continue to write about this area of British Columbia personal injury law as it develops in the coming months.

Rule 37B – Formal Settlement Offers and Liability Trials

Written by admin on . Posted in BC Supreme Court Costs Cases, ICBC Liability (fault) Cases, Settlement Law, Uncategorized. 85 Comments on Rule 37B – Formal Settlement Offers and Liability Trials


It is not uncommon for personal injury lawsuits to sever the issues of quantum and liability.  What this means is that with a Court order a lawsuit can proceed on the issue of fault first and leave the issue of the value of the claim for a later date.  This often makes sense in serious injury litigation with contested liability where the cost of proving damages will be expensive and the parties wish to save the money associated with this until its clear who is at fault for an accident.
As readers of this post know Rule 37B permits the Court to reward a successful party in a lawsuit with a double costs award if that party beats a formal settlement offer.  In cases addressing quantum its easy to determine if a formal offer was beat at trial.  You simply look at the numbers.  But can Rule 37B be used in a liability only trial?  Reasons for judgement were released today dealing with this issue for what I believe is the first time.
In today’s case (McLaren v. Rice) the Plaintiff made a personal injury claim against the various defendants.   Liability and quantum were severed.  Before the liability trial proceeded the Plaintiff made the following formal settlement to the Defendants:

The plaintiff, Matthew R.J. McLaren, offers to settle the liability trial in this proceeding on the following terms: that the defendant is 99 percent responsible for the motor vehicle accident of February 26, 2005, in which the plaintiff was a passenger in the vehicle owned and operated by the defendants and costs in accordance with Rule 37B.

The plaintiff reserves the right to bring this offer to the attention of the court or consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding relating to liability for the accident.

This offer was rejected.  The Plaintiff proceeded to trial and was successful with the Court finding that the defendants were jointly and severally liable for the accident.

The Plaintiff brought a motion seeking double costs under Rule 37B.  The Defendants opposed this arguing that when the plaintiff added the words “relating to liability in this proceeding” to the offer it was rendered null because it did not comply with Rule 37B(1)(c)(3) which requires a formal offer to contain the following sentence “the…[name of the party making the offer]…reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgement on all other issues in this proceeding“.

Mr. Justice Brooke rejected this argument and held that Rule 37B can be used in liability only trials.  The Court provided this short but helpful analysis:

[7] Despite the prescribed formulation in Rule 37B, 1(c)(3) being added to with the words “relating to liability in this proceeding”, I am satisfied that the plaintiff has complied with the definition of offer to settle contained in Rule 37B(1) and the issue is properly before me. On the trial of the quantum issue, it seems to me that Rule 37B may again be invoked. The two aspects of the trial are separate and discrete.

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.

BC Court of Appeal Clarifies Law in Future Wage Loss Injury Claims

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When a Plaintiff suffers lasting injuries as a result of the negligence of others the law allows for compensation of future losses.   When it comes to future earnings being impacted by injury the Courts in BC do not compensate “loss of earnings” but rather a “a loss of earning capacity“.
There is a feeling amongst some personal injury lawyers that the BC Courts have handed out contradictory judgements regarding the circumstances required to prove a diminished earning capacity claim.  Today the BC Court of Appeal addressed the law of diminished earning capacity and added some welcome clarity to these types of claims.
In today’s case (Perren v. Lalari) the Plaintiff was injured in a 2004 BC car crash.  She was found to have suffered from chronic soft tissue injuries that will continue indefinitely.  According to the trial Judge the injuries rendered “the plaintiff less marketable than she was before the accident but not in a way that demonstrates any substantial possibility that she will suffer an associated loss”  The Judge went on to award $10,000 for the Plaintiff’s diminished earning capacity.  (You can click here to read my 2008 article about this trial judgement).  Interestingly the Trial Judge invited the Court of Appeal to canvass this area of law stating that “It would be helpful if the Court of Appeal has an opportunity to address these issues fully”
The Defendant appealed the judgement arguing that the Judge was wrong in law in awarding money for dimished earning capacity on the facts of the case.  The BC Court of Appeal agreed and in doing so provided the following useful summary of the law:

[30]         Having reviewed all of these cases, I conclude that none of them are inconsistent with the basic principles articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.  These principles are:

1.         A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation [Athey at para. 27], and

2.         It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made [Andrews at 251].

[31]         Furthermore, I conclude that there is no conflict between Steward and the earlier judgment in Pallos.  As mentioned earlier, Pallos is not authority for the proposition that mere speculation of future loss of earning capacity is sufficient to justify an award for damages for loss of future earning capacity.

[32]         A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that there is a real and substantial possibility of a future event leading to an income loss.  If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown.  The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok.  The latter approach will be more useful when the loss is not as easily measurable, as in Pallos and Romanchych.  A plaintiff may indeed be able to prove that there is a substantial possibility of a future loss of income despite having returned to his or her usual employment.  That was the case in both Pallos and Parypa.  But, as Donald J.A. said in Steward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss.

[33] On the facts of this case, the trial judge found that there was no substantial possibility of a future event leading to an income loss.  That should have been the end of the enquiry.  That was a reasonable conclusion on the evidence because there was no evidence that she was limited in performing any realistic alternative occupation.

Pedestrian Found Partially At Fault for Injuries for Failing to Use Sidewalk

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with the duty of Pedestrians to use a sidewalk or crosswalk where one is available.
In today’s case (Larsen v. Doe) the pedestrian Plaintiff was struck by a vehicle while “walking in a T intersection normally used by vehicles“.  There was no marked pedestrian walkway where the collision occurred however there was a sidewalk nearby and “if the pedestrian had taken the sidewalk, her path would cross the street within the unmarked crosswalk much closer to the stop sign from which the vehicle departed“.  The collision was a hit and run and the identity of the driver/owner of the vehicle remained unknown at the time of trial.
As permitted by section 24 of the Insurance (Vehicle) Act the Plaintiff sued ICBC directly as a nominal defendant seeking compensation for her injuries.  ICBC, in the place of the unknown motorist, was found liable for the collision.  ICBC argued that the Plaintiff should be found partially at fault for not utilizing the nearby sidewalk.  Mr. Justice Josephson agreed with this submission.  In finding the plaintiff 25% at fault for the collision Mr. Justice Josephson provided the following analysis:

[12]         The plaintiff argues that, as she was walking along the highway, she had either entered the intersection or was approaching so closely that she constituted an immediate hazard to the defendant driver. Consequently, the defendant was obligated to yield the right of way to the plaintiff and, had she done so, could have proceeded after the plaintiff cleared the intersection.

[13]         While ss. 175 and 119, taken together, give through traffic the right of way, s. 175 does not grant to pedestrians travelling along a highway the right to proceed on the roadway itself where a sidewalk or a crosswalk is available. No authorities have found otherwise.

[14]         Furthermore, the plaintiff’s submission that s. 175 grants pedestrians the right of way in travelling along a roadway runs contrary to s. 182(1) of the MVA which provides that, where there is a sidewalk, a pedestrian should avail herself of it.

[15] Therefore, I find that the plaintiff was in breach of her statutory duties under s. 180 and/or s. 182(1) of the MVA and cannot invoke s. 175 in such a way as to override those duties…

[25]         In the case at bar, I find that the plaintiff’s breach of her statutory duties under the MVA did contribute to the accident and, consequently, the injuries she sustained. Because she chose to walk along the roadway behind the diagonal parking stalls, the plaintiff made herself less visible to the defendant than had she chosen to cross the intersection within the unmarked crosswalk according to her duties under the MVA. While the plaintiff believed the defendant driver saw her and was waiting for her to cross the intersection, she should have reasonably perceived the danger the defendant’s car presented given the minimal lighting in the intersection and given that a driver would not expect pedestrians to emerge into the intersection from the other side of the parking stalls when there was a sidewalk and crosswalk available to her.

[26]          I conclude that liability should be apportioned 75% to the driver and 25% to the plaintiff.

This case is also worth reviewing for the Court’s discussion of a Plaintiff’s duties to ascertain the identify of the Driver in Hit and Run Claims.  In order to successfully sue ICBC under s. 24 of the Insurance Vehicle Act a Plaintiff needs to make “all reasonable efforts…to ascertain the identity of the unknown driver“.  Here ICBC argued that the Plaintiff, despite being hit unexpectedly and having a compound wrist fracture, unreasonably failed to obtain identifying information with respect to the offending vehicle.  The Court disagreed with this submission finding that the Plaintiff was in shock and that her failure to identify the motorist was not unreasonable, specifically the court found as follows:

[36] In determining whether a claimant has made all reasonable efforts, the court must have regard to the subjective condition of the claimant at the time of the accident: see Leggett v. Insurance Corporation of British Columbia (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.) [Leggett cited to B.C.L.R.] at para. 12. Therefore, where a claimant fails to obtain the identity of the driver or owner at the time of the accident because she was in a state of shock, the claimant will not be held to have acted unreasonably. In order to find that a claimant was in a state of shock, medical evidence is not required; a finding that the claimant was “taken by surprise and confused” is sufficient: see Hocaluk v. Insurance Corp. of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360 at para. 56.

[37] Under subsection (b), the phrase “not ascertainable” should not be strictly interpreted to mean “could not possibly have been ascertained” but, rather, whether the identity of the person “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position”: see Leggett at para. 11.

[38] I am satisfied that the plaintiff was in a significantly altered emotional state following the collision that rendered her incapable of rationally assessing her duties and obligations. With the meaning of Leggett, she was not in a condition that it would have been reasonable for her to discover and record the appropriate information.

[39] Once recovered, she employed all reasonable efforts to ascertain the identity of the owner and driver. While not all possible efforts were employed, those that were fall well within the classification of “reasonable”.

Protection of the Public – Holding a Lawyer Personally Liable for Unnecessary Court Costs

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on Protection of the Public – Holding a Lawyer Personally Liable for Unnecessary Court Costs


Can a lawyer be held personally liable to his client or to the opposing party for Court Costs incurred because of unreasonable steps taken in a lawsuit?  The answer is yes and today the BC Court of Appeal provided lengthy reasons addressing this important issue.
In today’s case (Nazmdeh v. Spraggs) the lawyer represented a client in a personal injury lawsuit.  A number of pre-trial applications for discovery were brought by the defence lawyer and these were resolved through Chambers Hearings.   One of the applications was for interrogatories and another demanded particulars.  The Court granted these motions and held that the lawyer for the Plaintiff “failed to comply with his independent obligations as counsel in response to the interrogatories and demand for particulars…..the lawyer had failed to take positive steps to meet his obligations“.
As a result the lawyer was ordered to personally pay costs to the Defendant.  This order was made under Rule 57(37) which holds as follows:

(37)  Where the court considers that a solicitor for a party has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following:

(a)        disallow any fees and disbursements between the solicitor and the solicitor’s client or, where those fees or disbursements have been paid, order that the solicitor repay some or all of them to the client;

(b)        order that the solicitor indemnify his or her client for all or part of any costs that the client has been ordered to pay to another party;

(c)        order that the solicitor be personally liable for all or part of any costs that his or her client has been ordered to pay to another party;

(d)        make any other order that the court considers appropriate.

The Plaintiff’s lawyer challenged this finding and the case was brought before the BC Court of Appeal.  He argued that a lawyer should only face such punishment if his/her conduct was “reprehensible“.
The case was argued before a 5 member panel of the BC High Court and even the Law Society of BC intervened arguing that the Chambers Judge was wrong in making such an order and that it would have a “chilling effect on litigation and on advocacy…and ultimately undermine collegiality“.
The Court of Appeal rejected these arguments and dismissed the appeal.  In doing so the BC High Court provided the following instructive reasons on when a lawyer can be personally responsible for Court Costs under Rule 57(37) for steps taken in a BC Supreme Court Lawsuit:

[101] Prior to the enactment of the Rules, the Supreme Court of British Columbia had power to make orders against lawyers to pay costs personally under the court’s inherent jurisdiction.  Such orders were generally made only in cases of “serious misconduct”. The Rules, particularly Rule 57(30) and its successor Rule 57(37), have, however, expanded the scope of conduct which might support costs orders against lawyers. The Court now has a discretion to order a lawyer to pay costs where he has “caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault”.

[102] Under Rule 57(37), mere delay and mere neglect may, in some circumstances, be sufficient for such an order against a lawyer. Under the Rule there is no requirement for “serious misconduct”, the standard required under the court’s inherent jurisdiction. The requirement in Young and in Kent of “reprehensible” conduct applies only in cases of orders against a lawyer for special costs. Young and Kent are not authority for requiring such a standard when making an order for party and party costs against a lawyer. In such circumstances, the lower standard mandated by the Rule is sufficient.

[103] The power to make an order for costs against a lawyer personally is discretionary. As the plain meaning of the Rule and the case law indicate, the power can be exercised on the judge’s own volition, at the instigation of the client, or at the instigation of the opposing party. However, while the discretion is broad, it is, as it has always been, a power to be exercised with restraint. All cases are consistent in holding that the power, whatever its source, is to be used sparingly and only in rare or exceptional cases.

[104] The restraint required in the exercise of the court’s discretion is not to be confused with the standard of conduct which may support its use. Care and restraint are called for because whether the unsuccessful party or his lawyer caused the costs to be wasted may not always be clear, and lawyer and client privilege is always deserving of a high degree of protection.

[105] Nothing in these reasons is a comment upon the immunity of barristers for their conduct in court. This case is not about contempt, abuse of process or similar egregious conduct. It concerns only what a lawyer did or did not do in response to interrogatories and a demand for particulars.

[106] In my respectful view, the learned chambers judge did not err in interpreting the rule according to the plain meaning of its words.

Now to Cross-Reference:  Do the New BC Supreme Court Civil Rules which come into force change this judgment?  Probably not.  Rule 57(37) is reproduced with almost identical language and can be found at Rule 14-1(33) of the New Rules.

The ability of parties to use interrogatories as a means of pre-trial discovery has been restricted under the New Rules so this triggering event is unlikely to give rise to costs consequences however the test set out by the BC Court of Appeal will likely remain good law after the new Rules come into force.

ICBC Injury Claims: Provincial Court vs. BC Supreme Court

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.


When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in.  Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?
Both courts have notable differences.  Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction.  The maximum award for damages that can currently be made in the Provincial Court is $25,000.  The Supreme Court has an unlimited monetary jurisdiction.
For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court.  But what about more modest claims, claims that may fall in the $20,000 – $30,000 range?  Where should these be filed?
While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers.  Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court.  There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.
While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now.  Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.
In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC.  This was a Low Velocity Impact.  ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.
The Plaintiff’s lawyer sought a significantly higher award.  Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500.  In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court.  Specifically Judge Kay stated as follows:
This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically.  This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court.  In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life.  While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.

Expert Evidence – Doctors, Biomechanical Engineers and Force Necessary to Cause Injury

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


When a personal injury claim is advanced the Plaintiff has the burden to prove what injuries they suffered and that these were caused (or materially contributed to) by the trauma in question.  In proving a case it is common for a Plaintiff to obtain expert opinion evidence from medical doctors to address issues such as diagnosis of injury, prognosis, treatment needs, disability and causation.
One tactic used by personal injury lawyers is to try and limit the scope of the opposing sides expert witness’ opinions.  If a witness wanders outside of their area of expertise then those portions of their opinion become inadmissible.
When addressing the issue of causation a developing area of BC Injury Law is whether a physician can give opinion evidence with respect to the forces necessary to cause a specific injury.  Some argue that this is outside of a medical doctors training and is better left to biomechanical engineers.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an argument.
In today’s case (Pham-Fraser v. Smith) the Plaintiff sustained numerous injuries in a 2006 BC car crash.  The Plaintiff’s vehicle was struck at an intersection when the Defendant entered against a red light.  The issue of fault was admitted focusing the trial on the issue of damages.
In support of her case the Plaintiff called numerous physicians to give expert opinion evidence.  One of these witnesses was Dr. Brian Hunt, a neurological surgeon.  He provided the opinion that the “accident created sufficient deceleration forces to produce damage to (the plaintiff’s) L5 vertebra through abnormal axial-loading but that a biomechanical engineer (would need to) confirm this probability“.
The Defence lawyer argued that Dr. Hunt was simply not qualified to give this opinion and that this opinion was inadmissible.  Mr. Justice Greyell rejected this submission and provided the following useful analysis:

[50] Mr. Killas argued certain aspects of the expert evidence called by the plaintiff were inadmissible and that other expert opinion evidence should be given little or no weight.  In particular the defendants argued I should give little or no weight to Dr. Hunt’s opinion the accident created sufficient forces to produce damage to the L5 vertebral body through abnormal axial loading.  Mr. Killas pointed out Dr. Hunt then qualified this opinion with this remark:  “However a biomechanical engineer will need to confirm this probability”.  Mr. Killas noted Dr. Hunt had not done an investigation into the circumstances of the accident (vehicle speed, etc.) to make his opinion.

[51] Mr. Killas also argued Dr. Hunt’s diagnosis that the plaintiff sustained a brain dysfunction secondary to brain injury was simply based on the reading of Dr. Longridge’s medical report and on an unproven assumption the plaintiff had a lack of awareness of the circumstances of the motor vehicle accident.  Mr. Killas also argued Dr. Hunt’s opinion the plaintiff probably suffered abnormal axial loading on her spinal column during the accident was qualified by Dr. Hunt when he said in his report that “a biomechanical engineer will need to confirm this probability”.

[52] I accept Dr. Hunt’s opinion on both these issues.  There was evidence concerning the plaintiff’s limited recollection of what happened following the accident and I accept Dr. Hunt, given his qualifications and special experience, was well able to offer the opinions he did.

[53] I have ascribed as much weight to Dr. Hunt’s opinion concerning the cause of the plaintiff’s lower back injury as I have on the opinions of the other specialists who testified, including Dr. Schweigel.  Dr. Hunt’s expertise (and that of the others) has been gained through many years treating patients who have been involved in motor vehicle accidents.  He is well qualified to offer the opinion he did.  The fact Dr. Hunt was prepared to defer to the opinion of a biomechanical engineer does not, in my view detract from his expertise in offering his opinion to the court on the cause of the plaintiff’s lumbar spine injury.  I similarly find that the evidence of Dr. Hartzell concerning the forces applied to the plaintiff’s lower spine during the accident is helpful to the court and hence admissible, given his experience and qualifications.  Both Dr. Hunt and Dr. Hartzell, through their long and distinguished medical practices have had experience with persons with spinal injuries.

More on ICBC Claims and the "Failure to Mitigate" Defence

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

When advancing an ICBC tort claim Plaintiffs have a duty to take reasonable steps to limit their loss.  If a plaintiff does not do so the value of their claim can be reduced .  This legal defence is known as “failure to mitigate“.  (You can click here to read my previous posts discussing this topic).
In the personal injury context, it is not unusual for defendants to argue that plaintiffs failed to mitigate their damages.  A common argument is that a Plaintiff failed to follow medical advice.
While failing to follow medical advice can result in reduction of the value of a claim, this fact in and of itself is not enough.  To succeed the Defendant will have to prove not only that the Plaintiff failed to follow medical advice but that had the Plaintiff done so it would have improved the course of their injuries.  Reasons for judgement were released today demonstrating this principle.
In today’s case (Singh v. Shergill) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted.  The Plaintiff’s injuries included soft tissue damage to his low back.  The Defendant argued that the Plaintiff “did not follow his doctor’s recommendations” and that the Court should reduce the value of the claim for failure to mitigate.  Madam Justice Baker agreed that the Plaintiff “did not follow his doctor’s recommendations” but did not reduce the value of the Plaintiff’s claim.  Specifically the Court held as follows:

[45] The defendant submits that Mr. Singh would have recovered more quickly, and would experience less discomfort and impairment if he had followed Dr. Ng’s recommendation to undergo physiotherapy for a period longer than he did, and to engage in an active program of physical exercise to strengthen his core muscles, in particular, his abdominal muscles.

[46] I agree with the defendant that Mr. Singh did not follow his doctor’s recommendations.  I am not persuaded, however, that the evidence is sufficient to permit me to conclude that Mr. Singh would have recovered more fully, or more quickly, if he had done as Dr. Ng recommended.  Mr. Singh testified that although the five physiotherapy treatments he did have in 2006 resolved the problems in his neck and shoulders, he experienced no relief in relation to the lower back symptoms.

[47] I expect that Dr. Ng was hopeful that the treatment he was recommending would be of benefit to Mr. Singh, but he has not testified that it is probable that Mr. Singh would be in better condition today if he had continued physiotherapy.  Dr. Ng has pointed out, and the evidence establishes, that the job Mr. Singh does five days a week involves considerable physical labour, and therefore Mr. Singh does get physical exercise.

[48] I conclude the defendant has failed to prove a failure to mitigate.

The lesson to be learned is that the Defendant has the burden of proving failure to mitigate in a personal injury lawsuit.

If this defense is raised it needs to be determined what difference would have been made if the Plaintiff did what the Defendant alleges the Plaintiff should have done.  Usually expert opinion evidence would be necessary to discharge this burden and Plaintiffs faced with this defence would be wise to scrutinize the evidence Defendants have in support of their arguments when gauging whether their settlement should be affected for failure to mitigate.

Can You Call a Witness After You Close Your Case?

Written by admin on . Posted in Civil Procedure, Uncategorized. 91 Comments on Can You Call a Witness After You Close Your Case?

The answer is yes and reasons for judgement were published today on the BC Supreme Court website discussing this area of the law.
In today’s case (MacEachern v. Rennie) the plaintiff suffered a severe brain injury when her head came into contact with a tractor trailer unit while she was walking or riding a bicycle along a highway in Surrey, BC.
The Plaintiff presented her case in court and called over 35 witnesses to discuss the crash and the extent of her accident related injuries.  After the Defendants opened their case the Plaintiff’s lawyers re-established contact with a witness that they had lost contact with.  The Plaintiff wished to re-open her case to call the witness before the end of trial.  The Defendants would not consent to this.  Mr. Justice Ehrcke ruled that it would be appropriate to permit the Plaintiff to call this witness.  In ordering so he summarized and applied the law as follows:
[8] I have not been referred to any authorities that are directly on point, that is, dealing with an application by the plaintiff in a civil case to re-open for the purpose of calling a missing witness during the course of the defence case. There are, however, numerous cases dealing with applications to re-open to call further evidence after the defence has concluded its case. Those cases make it clear that the court has a discretion to allow a party to re-open to adduce new evidence, even after judgment has been rendered, but before the order has been entered…

[10] The present case is neither an appeal nor is it a criminal matter. In British Columbia the leading case on re-opening a civil trial before the entry of the formal order is Clayton v. British American Securities Ltd., [1934] 49 B.C.R. 28 (C.A.). A majority of the five justice division who sat in that case rejected the dissenting view that the due diligence requirement must be applied as a strict rule. In support of the majority position Macdonald J.A. wrote at pp. 66 to 67:

My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combatted I have given it careful consideration. The point, as far as I know, has not been squarely decided; at least by any cases binding upon us. It is, I think, a salutary rule to leave unfettered discretion to the trial judge. He would of course discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof. If the power is not exercised sparingly and with the greatest care fraud and abuse of the Court’s processes would likely result. Without that power however injustice might occur. If, e.g., a document should be discovered after pronouncement of judgment, but before entry, showing that the judgment was wrong and the trial judge was convinced of its authenticity no lack of diligence by a solicitor in not producing it earlier should serve to perpetuate an injustice. The prudent course is to permit the trial judge to exercise untrammelled discretion relying upon trained experience to prevent abuse, the fundamental consideration being that a miscarriage of justice does not occur.

There are reasons for rules governing the admission of evidence by an Appellate Court, not applicable to a trial judge. Hearing new evidence is a departure from its usual procedure and it is fitting that departures in ordinary practice should be limited by rules to prevent abuse. Entry of judgment may be merely a formality but it is necessary, that at some arbitrary point the jurisdiction of the trial judge should end. A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized. Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules than an Appellate Court. He knows the factors in the case that influenced his decision and can more readily determine the weight that should be given to new evidence offered. I may add that he might well be guided, although not bound by the rules referred to.

[11] On the material before me in the present case I am satisfied that the proposed new witness, Mr. Salter, has evidence to give that is clearly relevant to important issues and could affect the result. There is little, if any, prejudice to the defendants in allowing the plaintiff to re-open to call his evidence, because the application comes so early in the defence case. There is no suggestion that the defendants would have differently examined any of the witnesses they have so far called had Mr. Salter been called on May 14, prior to the close of the plaintiff’s case. In any event, the CN defendants must have known what evidence Mr. Salter might give, since unlike counsel for the plaintiff, they spoke to him months ago.

[12] I reject the defendants’ submission that the present application should be dismissed on the basis that plaintiff’s counsel failed to exercise due diligence in locating Mr. Salter. The standard of due diligence requires that serious efforts be made, but the standard is not one of perfection   Mr. Salter is a person of no fixed address who at the time of the accident was, like the plaintiff, living in a tent city. The difficulty this posed in finding him must be obvious. I am satisfied that plaintiff’s counsel took all reasonable steps to locate Mr. Salter, and they are not to be faulted for the fact that their efforts did not bear fruit prior to the close of the plaintiff’s case.

[13] Counsel for the CN defendants suggested that the plaintiff should have asked for an adjournment to locate Mr. Salter. I find that suggestion quite unrealistic given that plaintiff’s counsel had no reason to believe that their efforts would be successful if they only had a little more time.

[14] I am satisfied that the interests of justice require that the plaintiff be permitted to re-open her case to call Mr. Salter as a witness.