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A Busy day with ICBC Injury Claims

Written by admin on February 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 42 Comments on A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:

30] Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31] I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32] Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:	$35,000.00
Special damages:	$8,500.00
Past loss of wages:	$12,000.00
Loss of capacity:	$20,000.00
TOTAL:	$75,500.00

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:

[109] In summary, my conclusions are as follows:

(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c) Mr. Haag’s claim for past income loss is dismissed.

(d) I award Mr. Haag $60,000 for loss of earning capacity.

(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

(a)	Non-Pecuniary Damages	$30,000
(b)	Loss of Income to Trial	$15,000
(c)	Loss of Earning Capacity	$15,000
(d)	Future Care	$ 500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:

1.	Pain and suffering	$115,000
2.	Past wage loss (gross)	$75,000
3.	Impairment of earning capacity	$262,000
4.	Special damages	$47,400
5.	Future care	$75,000

Whew! Now back to work.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on February 17, 2009. Posted in Civil Procedure, independent medical exams, Uncategorized.

Ok, second post of the day on this topic.
Typically ICBC (on behalf of their insured defendant) are able to send a Plaintiff to an Independent Medical Exam in the course of a BC Supreme Court lawsuit in order to level the playing field. In certain cases they are entitled to more than one exam.
Reasons for judgement were released today (Norsworthy v. Greene) dismissing a defence applicaiton for a second examination in an ICBC Injury Claim.
In this case the Plaintiff obtained several medico-legal reports including the report of a physical medicine specialist and a Functional Capacity Evaluation. ICBC had the Plaintiff examined by Dr. Schweigel. Dr. Schweigel provided the opinion that the Plaintiff had soft tissue injuries and that she “could have been off work for roughly 3 months. After that she should have been able to return to work in a graduated fashion. Within five to six months, she should have been able to return to full time work. This lady is not disabled now from all the activities she was doing prior to the two MVA’s“.
The Plaintiff’s experts disagreed and provided opinion that her injuries were more severe and disabling that opined by Dr. Schweigel. ICBC applied for a second ‘independent’ exam on the basis that they should be entitled to reply to the Functional Capacity Evaluation opinion obtained by the Plaintiff. In rejecting the applicaiton Master Caldwell of the BC Supreme Court gave the following summary of the law regarding requests for multiple Independent Medical Exams:

[22] It should be obvious to any reader of these two reports that each was prepared by two persons with two completely different disciplines and approaches; yet there was a noticeable crossover in some of the observations made by each of them.

[23] In Christopherson v. Krahn, 2002 BCSC 1356, Madam Justice Smith made the observations at para. 9 that the test of reasonable equality does not mean that for each specialist relied upon by the plaintiff, the defendant is entitled to an IME from a similar specialist. Smith J. went on to deal with this proposition when she quoted from Henry v. Derbyshire, [1997] B.C.J. No. 1750, a decision of Master Nitikman where, at para. 13, the master stated:

A third applicable principle is that the party seeking the examination is not limited to one independent examination but

The court will not order a second examination merely to permit the defendant to get a second opinion on the same matter. [She went on to say] A second examination may be appropriate where there is some question which could not have been dealt with on the first examination. The applicant must show a reason why it is necessary for the second examination.

[24] I take the view that in the case at bar the defendants are seeking a second examination pursuant to Rule 30(2).

[25] The IME sought by Dr. Schweigel was conducted after the defendants had knowledge of the earlier functional capacity evaluation of the plaintiff by an occupational therapist retained by the plaintiff, yet the defendants chose to have an IME conducted by an orthopedic surgeon. That opinion seems to be firm. Now the defendants seek an opinion of an occupational therapist which may undermine the opinion of Dr. Schweigel, their own expert.

[26] Respectfully, in my view, although the defendants point to the different purposes of the reports, I do not believe that those differences alone provide a valid reason for a second report pursuant to Rule 30(2).

[27] Accordingly, I dismiss the defendants’ application and award the plaintiff her costs for preparation for and attendance at the hearing of this matter.

ICBC Injury Claims and Late Independent Medical Exams

Written by admin on February 17, 2009. Posted in Civil Procedure, independent medical exams, Uncategorized.

When advancing an Injury Claim in the BC Supreme Court the Defendant’s are entitled to send the injured plaintiff to an independent medical exam or exams in order to ‘level the playing field’.
If a litigant wishes to rely on expert evidence addressing injuries Rule 40A of the BC Supreme Court Rules sets out the timelines for disclosure of such evidence to the opposing side. Sometimes, ICBC defence lawyers apply for multiple independent medical exams and sometimes these applications are brought late into the pre-trial process such that any report generated will not comply with the timelines of Rule 40A.
Reasons for judgement were released today (Critchley v. McDiarmid) by Mr. Justice Burnyeat of the BC Supreme Court clarifying the law as it relates to late applications for independent medical exams. In today’s case the court ordered that the Plaintiff see a psychiatrist even though the scheduled appointment was to take place outside of the timelines required by Rule 40A. In reaching this decision the court summarized the relevant legal principles as follows:

[16] In Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (B.C.C.A.) Finch, J.A., as he then was, stated on behalf of the Court that the purpose of Rule 30 was:

This Court has repeatedly said that the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. What steps are necessary to achieve that end is a matter of discretion for the chambers judge to assess in the circumstances of each case.

[17] Subsequent decisions have established the following general principles: (a) the timing of the request for the independent medical examination is a relevant consideration in that a late request by a defendant may create a prejudice to the plaintiff by placing the plaintiff in a situation where he or she is either unable to respond to the proposed examination or is forced to seek an adjournment of the trial; (b) an inability to respond to a proposed examination constitutes prejudice to a plaintiff; (c) and an adjournment of a trial constitutes prejudice to a plaintiff.

[18] I am of the view that the exercise that was before the Learned Master was as set out by Master Groves, as he then was, in Mackichan v. June and Takeshi, [2004] B.C.J. (Q.L.) No. 2296 (B.C.S.C.):

The argument for a late medical examination is really a complication, or better put, an extension of the Stainer v. Plaza reasoning in that, I believe, the court must consider fairness between the parties and a balancing of prejudice when a request for a late medical examination is made. It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I accept, cause an adjournment of the trial.

(at para. 11)

[19] While I am satisfied that the question of whether an independent medical examination raises a question vital to the final issue including the quantum of damages so that it is appropriate that there be a re-hearing of the matters which were before the Learned Master, the submission made on behalf of Mr. Critchley was that this was a purely interlocutory matter and that the Court on a review would have to find that the Learned Master was clearly wrong.

[20] On the assumption that the appeal must be heard on that basis, I have come to the conclusion that the Learned Master was clearly wrong in reaching his decision. First, I cannot be satisfied that the Learned Master considered whether or not the proposed independent medical examination was required to put the Defendant on equal footing with the Plaintiff. Nowhere in his Reasons does the Learned Master make this finding or give full consideration to this question.

[21] The Learned Master also fell into error by requiring the Plaintiff to establish with near certainty that the Trial would be adjourned. By using the phrases “would be adjourned”, “why an adjournment would be inevitable”, “it is not automatic that the trial will be adjourned”, and “I have no evidence to conclude that there would be an adjournment ….”, the Learned Master was in error. The Learned Master pointed out in his Reasons that which is obvious – the question of whether an opinion produced after an independent medical examination will result in an application for an adjournment can only be answered after an expert opinion is tendered under Rule 40A of the Rules of Court. Here, it may well be that there is no need for the Plaintiff to arrange for an expert opinion to counter what might appear in the expert opinion flowing from the independent medical examination requested. Accordingly, it is never correct to require a party to show that an adjournment would be “inevitable”.

[22] The nature of the findings in an opinion after an independent medical examination, the timing of the receipt of it, and the proximity of the likely receipt of it in relation to the date set for the Trial are factors which must be taken into account but whether or not an adjournment will be inevitable is not a factor which need be shown. The question of whether an adjournment may be required is merely one of the factors which should be considered. However, it is not the sole factor to be considered on the question of whether the independent medical examination should be ordered.

[23] I am also satisfied that the Learned Master erred by taking into account an earlier examination date which Mr. Critchley was not able to attend and by concluding that, had this earlier examination taken place, there would have been no prejudice to the Plaintiff. I am satisfied that the Learned Master should only have given consideration to the proposed date of the examination and not an earlier date.

[24] In the circumstances, I can conclude that the Learned Master was clearly wrong and that the Order made should be set aside.

More on ICBC Claims Lawyers and ICBC's 'Strategic Alliance Agreement"

Written by admin on February 16, 2009. Posted in Tort Reform, Uncategorized.

Is your ICBC Claims Lawyer also in partnership with ICBC? Depending on who your lawyer is the answer could be yes. It is very important for any injured person looking to hire a lawyer for their ICBC Injury Claim to ask whether their lawyer has signed ICBC’s SAA. (for background see my previous article Does your Lawyer act fo ICBC, ask you may be surprised by the answer).
Today the BC Court of Appel released reasons for judgement (Tepei v. ICBC) confirming that lawyers (or law firms) that have signed ICBC’s Strategic Alliance Agreement are in a ‘partnership’ type relationship with ICBC.
In upholding a previous judgement ruling that an arbitrator who signed ICBC’s SAA agreement gave rise to a ‘reasonable apprehension of bias’ in presiding over an ICBC Injury Claim the Court of Appeal said the following about ICBC’s SAA and ICBC’s relationship with lawyers who signed it:

[1] KIRKPATRICK J.A.: This is an appeal from an order removing an arbitrator and vacating his rulings founded on a reasonable apprehension of bias. The chambers judge found that the Strategic Alliance Agreement entered into by ICBC and lawyers it retains provided comprehensive terms which emphasized the firm’s commitment to ICBC as “partners” in its enterprise rather than simply as counsel acting from time to time on individual cases.

[2] For substantially the reasons given by the chambers judge (2007 BCSC 1694, [2008] 3 W.W.R. 664, 78 B.C.L.R. (4^th) 95), I would dismiss the appeal. In my opinion, a reasonable and right minded person would expect the arbitrator to disclose the fact that his firm was a signatory to the Strategic Alliance Agreement and that the arbitrator was the principal contact between his firm and ICBC. Similarly, the fact that the arbitrator’s firm had signed a Strategic Alliance Agreement would give rise to a reasonable apprehension of bias.

[3] I am also not persuaded that the chambers judge erred in finding that the respondents’ failure to comply with the rules of B.C. International Commercial Arbitration Centre (Domestic Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre) (“BCICAC”) did not preclude them from claiming relief under s. 18 of Arbitration Act, R.S.B.C. 1996, c. 55. Section 18 of the Act permits a party, at any time, to apply to the Supreme Court for removal of an arbitrator who commits “arbitral error”, which would include a reasonable apprehension of bias. The Act provides remedies wider in scope than a challenge to impartiality and independence under s. 15 of the BCICAC rules, including vacating the arbitrator’s rulings and awards.

[4] It is obvious that arbitral error is central to the jurisdiction of the arbitrator. The jurisdiction of the Supreme Court cannot in these circumstances be trumped by the rules of the BCICAC.

$1.1 Million Awarded for Mild Traumatic Brain Injury with Poor Prognosis

Written by admin on February 12, 2009. Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding $1,186,425 to a Plaintiff who sustained a Mild Traumatic Brain Injury (MTBI) in a British Columbia car collision. The reasons for judgement were lengthy and consisted of over 400 paragraphs. This decision is worth reading for anyone advancing an ICBC brain injury claim for some insight into how complex some of the trial issues can be.
The court made the following findings with respect to the Plaintiff’s injuries and prognosis:

(a) Diagnosis

[275] Ms. Towson suffered a moderate to severe injury to her neck and back in the October 2002 accident.

[276] Some of the evidence focused on whether Ms. Towson’s complaints arose from a traumatic brain injury, or from chronic insomnia and ongoing chronic pain. Whether Ms. Towson’s symptoms arose from a traumatic brain injury in the October 2002 accident or from the chronic pain it caused, which led to the significant weight gain and the chronic insomnia, the symptoms were caused by the October 2002 accident.

[277] On the question of diagnosis, I prefer the evidence of Drs. Ancill, Krywaniuk, Knazan, Neumann and Feldman over the evidence of Dr. Tomita. Dr. Ancill has almost four times as many years of experience as Dr. Tomita in the practice of psychiatry. Dr. Ancill treated Ms. Towson, and saw her 13 times over almost four years. Dr. Tomita’s opinion was significantly based on his interpretation of Dr. Ancill’s records as demonstrating that Ms. Towson had recovered. Dr. Ancill did not interpret his own records that way.

[278] The weight of the evidence establishes that Ms. Towson suffered a traumatic brain injury, resulting in post-concussion syndrome. This has resulted in problems with concentration and memory, sensitivity to noise, anxiety and fatigue. She has chronic pain in the left neck, left shoulder and arm area, and periodic headaches. Her symptoms are so severe that she is not presently able to work. She is at risk of further episodes of depression.

(b) Prognosis

[279] The question of Ms. Towson’s prognosis is also difficult. She has made a serious effort to improve, and has been treated with medication, physiotherapy, massage therapy, chiropractory, and psychotherapy. Despite that, significant symptoms have persisted for six years.

[280] In these circumstances, Ms. Towson’s chances of returning to her pre-accident state, or of becoming employable, are poor. There is room for some hope, through continuing psychotherapy, that she will improve. There is a small chance that she will improve to the degree that she will be employable.

Damages were awarded as follows:

[400] Ms. Towson is entitled to judgment against MPS for $1,186,425, consisting of non-pecuniary damages of $185,000, past wage loss of $66,075, $725,000 for her lost future earning capacity, $4,200 for her lost opportunity to purchase the townhouse, $76,000 for the cost of future care, special damages of $10,000, and $120,150 for management fees. She is also entitled to the applicable pre-judgment interest.

More from BCSC on Rule 37B and ICBC Claims

Written by admin on February 12, 2009. Posted in Civil Procedure, Uncategorized. 50 Comments on More from BCSC on Rule 37B and ICBC Claims

Reasons for judgement were released today (Lumanian v. Sadler) by the BC Supreme Court giving further consideration to Rule 37B in an ICBC claim.
In this case ICBC made a settlement offer before trial. The Plaintiff proceeded to trial and ultimately received judgement below ICBC’s formal offer. In an application for costs the court refused to award ICBC costs or double costs but did deprive the Plaintiff of costs from the date of the offer onward.
The court’s key reasons are set out below.

Costs

[17] ICBC presented a formal offer to settle on May 23, 2008, in the amount of $110,000 “after taking into account Part 7 benefits paid or payable,” and any advances, plus costs and taxable disbursements. There is no disagreement that the plaintiff should get 75% of her costs up to May 23, 2008.

[18] The plaintiff submits she should have 75% of her costs to the end of trial; or in the alternative, that each party should bear its own costs after the date of the offer. The defendant seeks double costs for all steps in the proceeding after May 23, 2008.

[19] There is no dispute that the offer was a valid offer to settle within the terms of Rule 37, notwithstanding an issue that I will address below.

[20] The relevant subsections of Rule 37B for the purposes of this application are:

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[21] Recent decisions on this new Rule are clear that the court’s discretion is now unfettered, but that the underlying purpose of the old rule – encouraging settlement through the use of costs — remains an important objective.

[22] The amount the plaintiff will receive as a result of the judgment is approximately $81,000 before deductions. The settlement offer was $110,000 plus costs. ICBC submits that the result at trial was a significant win for them, and that the plaintiff, having rejected their reasonable offer, assumed the risk of cost ramifications and should pay double costs as a result.

Ought the offer to have been accepted?/Relationship to final judgment

[23] Although Rule 37B(5)(a) and (b) separate the issues of “reasonable acceptance” and “relationship between the offer and the final judgment,” in the circumstances here, where the plaintiff received a substantial award but one which is less than the offer, it is in my view appropriate to consider these factors together. The offer was for $110,000; the award at trial will be between $70,000 and $80,000, depending on deductions, and the plaintiff retains the potential to claim Part 7 benefits up to approximately $138,000.

[24] Argument on this issue proceeded on the basis that the plaintiff would have been required, if she had accepted the offer, to sign a release of her Part 7 benefits. I requested further submissions on that aspect of the argument, based on the decision of the Court of Appeal in Anderson v. Routbard, 2007 BCCA 193, 239 B.C.A.C. 98, in which a similarly worded offer was held to be clear and unambiguous, and was deliberately drafted to ensure that full access to Part 7 benefits remained unimpaired by acceptance of the offer. Although the legislation makes no such differentiation, the Court of Appeal decided in that case that the use of the word “payable” in these offers means only those Part 7 claims that have been submitted and are outstanding at the time of the offer, leaving the rest of the potential Part 7 fund available to be claimed.

[25] Counsel for ICBC now acknowledges that she was in error in submitting that the plaintiff would have been required to sign a release before accepting the offer, although she says it is common practice to settle both claims at once.

[26] Counsel for the plaintiff says it was clear in all negotiations concerning this matter that ICBC would require a release of both the tort and Part 7 claims if the offer were accepted. He does not go on to say that the offer itself is unclear in these circumstances, but says the issue of the reasonableness of rejecting the offer should be analyzed on the basis that such a release would have been required. Counsel for ICBC disputes plaintiff’s counsel’s assertion that there was an understanding that acceptance of the offer was predicated on a release of Part 7 claims.

[27] Although in law the plaintiff would not have been required to sign a release of Part 7 benefits as a term of accepting the offer, it appears from the positions of both counsel during oral argument and even from the subsequent written submissions that in the course of settlement negotiations, they both understood that a release would have been required. To resolve the dispute between counsel as to their respective understandings of whether the provision of a release would also have been a condition of the acceptance of the formal offer to settle would require counsel to provide additional information about their discussions and the settlement process. It might even require counsel to give evidence. This application for costs risks being complicated unproductively by such an examination, which would only add expense to the proceeding.

[28] Since I have found that the amount of future care costs is low, I will proceed on the basis that the issue of Part 7 benefits would not be conclusive either way in the assessment of whether or not the offer ought reasonably to have been accepted.

[29] ICBC says the plaintiff was unreasonable in rejecting the offer. She was obviously able to quantify her claim by the time the offer came in, as she submitted her own offer to settle for $185,000 the day before. ICBC then put in its offer, and also participated in mediation which the plaintiff instigated.

[30] Plaintiff’s counsel says he had medical and other expert reports backing up his client’s position, and to accept the offer would have meant ignoring all their evidence. Counsel for ICBC responds quite properly that a consideration of an offer does not mean that a party must ignore its own evidence; instead it requires an assessment of whether the offer is reasonable and this requires a realistic look at the whole case.

[31] A significant difference between the plaintiff’s position at trial and the amount of the award is in the area of future care costs, and this is reflected in the disparity between the plaintiff’s own offer and the result at trial. A trial judge is required to look into a crystal ball and assess future care costs for the tort claim based on the evidence adduced at trial, and then to look even further and assess future contractual Part 7 claims that might be made by the plaintiff insured against its insurer for the purpose of deductions from the tort award. This is an exercise fraught with uncertainty and potential unfairness, especially for a plaintiff like Ms. Lumanlan, whose future care costs are not clear and are contingent on whether and to what extent she develops arthritis, whether she moves into a house, whether she assumes care of her son (which she now deposes she is attempting to do), and what career she decides to pursue. She is young; her future plans are uncertain. Prior to the accident she had two good hands. Now she does not.

[32] As counsel for the plaintiff pointed out, this type of claim for future care, unlike one where no future care is required, or one where significant future care is required, is difficult to assess.

[33] The court in this tort action was circumscribed by the lack of evidence, and by its duty to be fair to both the plaintiff and the defendant, which prevents speculation unsupported by evidence. In terms of her relationship with her own insurer, however, within the Part 7 context, the plaintiff may well have to make claims in the future under her insurance contract as she matures and gains perspective on her limitations, especially if the court is shown, by the crystallization of events in the future, to have been unfairly limited by the lack of evidence at the tort trial.

[34] The result at trial was not dismissal of the action; Ms. Lumanlan obtained a not insignificant award. She suffered extensive damage to her hand. She was uncomplaining and not particularly adept at putting forth her evidence, and these limitations did not accrue to her advantage, but she did have a serious claim to advance.

[35] As well, an assessment of non-pecuniary damages, as every trial judge knows, is a difficult and somewhat subjective task, as hard as one tries to be consistent with other judgments. A jury verdict can, of course, be even more disparate when compared to assessments by judges. In my view, one should be cautious, with the advantage of hindsight, in equating having guessed wrongly with having been unreasonable in rejecting an offer, especially when the plaintiff receives a substantial award at trial.

[36] In Bailey v. Jang, 2008 BCSC 1372, the plaintiff’s entire claim was dismissed by a jury. Nevertheless, the trial judge held that he was unable to say she had been unreasonable in rejecting the offer. Rule 37B is worded in the affirmative. It is suggested that the court may consider “whether the offer … ought reasonably to have been accepted,” not whether the plaintiff was unreasonable in rejecting it. Nevertheless, given the broad discretion now existing in the section, I am of the view that the important conclusion to be taken from that decision is that this consideration is not one to be done with “hindsight analysis.”

[37] The trial judge in that case held that dismissal of the claim was not determinative of the reasonableness of rejection of the offer. Conversely, however, in my view, the size of the award at trial may offer some assistance in assessing the reasonableness of the plaintiff’s position at the time the offer was made. Here, the award was significant, although not as high as the offer.

[38] Bearing in mind the above considerations and the relationship between the offer and the eventual award at trial, I am unable to say in all these circumstances that the plaintiff, who did not have the benefit of hindsight, ought reasonably to have accepted the offer at the time it was made and prior to the commencement of the trial.

Financial circumstances

[39] ICBC submits that the relative financial circumstances of the parties should be at best a neutral factor. Although they defended the action, it is really the defendant whose finances are relevant. They will pursue their expenses against him.

[40] The plaintiff submits that ICBC was the party who conducted the litigation, and they did so because the defendant breached his insurance by driving dangerously and injuring the plaintiff.

[41] The fact that the defendant will have to pay ICBC back because he breached his contract through conduct which also resulted in the plaintiff’s injury should not be used to her detriment. However, I agree with counsel for the Third Party that it is not reasonable to compare the plaintiff’s financial circumstances to those of ICBC, even where ICBC has entered the action as a Third Party.

[42] The plaintiff deposes that she continues to make the salary she made at trial, that is $8.00 an hour, and she has moved out of her parents’ house to live with a friend temporarily while she asserts custody/access rights to her son, who is now cared for by her mother.

[43] The defendant, 26, is presently unemployed but intends to look for work as a heavy machine operator, which has been his employment since he was 16, when he gets his licence back later in 2009.

[44] There is not a sufficient imbalance in the parties’ relative financial circumstances to make this a significant factor in the present analysis.

Other factors

[45] The plaintiff has presented a draft bill of costs to show what a substantial penalty she should incur if forced to pay double costs to the defendant for steps taken after the offer to settle. It would indeed substantially deplete her award.

[46] In Bailey v. Jang, supra, double costs were awarded to the defendant under the new rule, even though the judge held that the offer was not rejected unreasonably, on the basis that to fail to do so would ignore the deterrent effect of the rule. There, the defendants had made an offer to settle of $35,000 and the jury dismissed the plaintiff’s claim entirely.

[47] Obviously, in the case at bar, the plaintiff’s claim was not dismissed. She received an award that is reasonably close to the offer, until reduced by contributory negligence. Under Rule 37(24)(b), which was in effect when the offer was presented, the defendants would have been entitled to double costs only if the action had been dismissed.

[48] ICBC argues that the plaintiff’s failure to acknowledge any contributory negligence was a barrier to settlement. The plaintiff did indeed pursue that position at trial.

[49] Counsel for the plaintiff takes the position that the mistake regarding the requirement for a release, which he contends was mutual and which counsel for ICBC contends was not, is another factor to consider. It is unfortunate that this dispute has arisen and remains unresolved, but as I stated earlier, the ultimate significance of future care claims is small.

Result on costs

[50] Whether or not the plaintiff was under the impression that she would have had to release future Part 7 benefits to accept the offer, it is apparent that she would have to establish entitlement to some $30,000 to $40,000 worth of Part 7 benefits to attain the amount of the offer, and she would, of course, have received taxable costs and disbursements. This is all without regard to her own legal costs, which obviously increased through the trial.

[51] Nevertheless, I have concluded that the plaintiff’s decision not to accept the offer was reasonable at the time, and although the award at trial was less than the offer, it was still substantial.

[52] Although the use of hindsight is not appropriate in the consideration of the reasonableness of accepting/rejecting the offer, an overall analysis of all of the factors under Rule 37B must be done with the advantage of hindsight, also keeping in mind the court’s unfettered discretion. From that perspective, the plaintiff would have been better off if she had accepted the offer. Her position on some aspects of the trial, such as contributory negligence, appears to have been a stumbling block to settlement.

[53] There should be some consequence in costs as a result, but in my view, it would be unfair and excessively penal to award double costs against the plaintiff, especially where these costs would not have been available under the rule in place when the offer was presented. Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.

[54] In the result, it is appropriate to give the plaintiff 75% of her costs up to the date of the offer and to deprive her of her costs thereafter. Each party will bear their own costs after the date of the offer.

This is the second ICBC Injury Claim that I am aware of that went to trial where ICBC beat their formal offer but were not awarded costs under Rule 37B. It seems that a middle of the road approach is being taken in some circumstances where the ‘punishment’ purpose of Rule 37B is being fulfilled by simply denying the Plaintiff costs. This may be a just result in cases where ICBC’s offer is not much greater than the amount awarded at trial and requiring a plaintiff to pay costs would be prohibitive in relation to the judgement. Interestingly the court here seems to have considered the defendants ‘foolish and reckless behaviour’ in causing the collision as a factor in determining costs consequences.
The judgements applying Rule 37B to ICBC Injury Claims keep coming and I will keep posting these as they come to my attention.

Over $250,000 Awarded for Serious Injuries in ICBC Claim

Written by admin on February 12, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 66 Comments on Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland.
I am still in trial still and only have time for bare bones reporting. In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome. The court’s key analysis of injuries is set out below:

[73] I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74] Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory. There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome. Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75] That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76] Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition. He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period. I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77] Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy. I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy. There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept. In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78] I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome. This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features. None of the pre-accident investigations demonstrated any facet joint issues.

[79] I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur. There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80] That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence. This brings me to the issue of his credibility. In general, I found the plaintiff to be a believable witness. I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81] As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf. Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability. There were no non-organic findings. I found Ms. Fischer to be a compelling witness.

[82] In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83] There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident. Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point. I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future. There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself. As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind. No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D. CONCLUSION

[127] I find the defendant 100% liable for the plaintiff’s damages. Those damages are assessed as follows:

non-pecuniary damages: $70,000.00

past loss of income: $67,500.00

loss of income earning capacity: $120,000.00

future care costs: $17,317.00

special damages: $1,687.46

Total: $276,504.46

Intersections, Left Hand Turns and ICBC Injury Claims

Written by admin on February 5, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on Intersections, Left Hand Turns and ICBC Injury Claims

(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability. You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection. Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver. There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between.
Reasons for judgement were released today dealing with an intersection crash finding a left hand turning vehicle 100% responsible for an intersection crash. In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC. This intersection is controlled by a stop sign. As the Plaintiff was turning left her vehicle was struck by the Defendant’s. Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:

[40] The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic. He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle. She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.

[41] The plaintiff relies on the provisions of s. 175(1) of the Act. She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard. Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.

[42] The plaintiff was the left turning vehicle. It was her obligation, in accordance with s. 174 of the Act, to yield the right of way to the traffic approaching from the opposite direction. The plaintiff did not turn her head to observe whether traffic was approaching. Nor did the plaintiff comply with the provisions of s. 175 of the Act. She did not stop before entering the intersection. The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close. She did not proceed with caution, despite driving slowly.

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.

[46] The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.

[47] The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff. The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic. The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.

[48] Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution. The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution. Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.

[49] Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic. I agree. The plaintiff was driving very slowly and could stop almost immediately. It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path. She did. When the defendant honked, the plaintiff stopped. It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.

[50] The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection. In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.

[51] Therefore, the plaintiff’s claim is dismissed. The defendant shall have his costs.

ICBC Injury Claims and Mitigation of Damages

Written by admin on February 5, 2009. Posted in Uncategorized. 97 Comments on ICBC Injury Claims and Mitigation of Damages

One of the principles of tort law is that of mitigation.
If you are injured through the fault of another you have a duty to take reasonable steps to minimize your losses. For example, if your doctor makes treatment recommendations and you refuse to follow these this can result in a ‘failure to mitigate’ argument by an ICBC Defence Lawyer. If such an argument succeeds the court can reduce the amount of damages according to the severity of the failure to mitigate.
Reasons for judgement were released today discussing and illustrating this principle.e In today’s case (Korosic v. Maitland) the trial judge found that the Plaintiff failed to mitigate her injuries and reduced damages accordingly. The key discussion was set out at paragraphs 122-132 which I reproduce below:

Mitigation

[122] The defendant contended that Ms. Kosoric had a positive duty to mitigate and, in failing to perform the strength and conditioning exercises recommended by her physicians and physiotherapists, she could have reasonably avoided some part of her loss. The defendant agreed that they bear the onus of proof on this issue.

[123] The concept of mitigation was discussed in Graham v. Rodgers, 2001 BCCA 432, 90 B.C.L.R. (3d) 69, leave to appeal to ref’d [2001] S.C.C.A. No. 467. The purpose of mitigation is to limit the recovery of an injured party based on their failure to take reasonable steps to minimize or limit their loss: see para. 35. As the defendant submits in their argument, a plaintiff has a positive duty to mitigate in personal injury actions; however, if a defendant argues a plaintiff may have reasonably avoided some of the loss, they bear the onus of proof: see para. 35.

[124] In situations where a plaintiff has not followed a course of recommended medical treatment, a defendant must prove two things: the plaintiff acted unreasonably in eschewing the recommended treatment, and the extent, if any, that the plaintiff’s damages would have been reduced had they acted reasonably: Chiu v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227 at para. 57, citing Janiak v. Ippolito, [1985] 1 S.C.R. 146. In Chiu, the court of appeal overturned the trial judge’s decision to reduce damages by 10% on account of the plaintiff’s failure to mitigate his damages. In overturning this part of the decision, the court stated that the defendant did not pursue cross examination of the plaintiff with respect to his failure to engage in counselling, nor did the defendant adduce any medical evidence demonstrating the consequences of the failure, on the part of the plaintiff, to obtain more counselling. There was simply no evidence indicating the effect of counselling and whether it would have accelerated the plaintiff’s recovery or had other positive impacts.

[125] Conversely, in Briglio v. Faulkner, 1999 BCCA 361, 69 B.C.L.R. (2d) 122, rev’g , in part, 1996 Carswell BC 1818, the Court of Appeal upheld the trial judge’s decision to reduce the damages by 10%, as a result of the plaintiff’s failure to engage in a recommended exercise program. At trial, the judge accepted medical evidence which stated that a structured exercise program would have assisted in the improvement of the plaintiff’s fibromyalgia condition. The plaintiff’s failure to engage in such exercise “likely had some negative effect on her condition”: trial decision at para. 148.

[126] In Kero v. Love, 90 B.C.L.R. (2d) 299, CarswellBC 179 (C.A.), the Court of Appeal upheld a jury’s decision to deduct a 25% contingency ($40,000) from a damages award. The court found that it was reasonable for the jury to make such a decision in light of the plaintiff’s failure to follow a prescribed exercise regime or seek alternative employment which would have been less stressful on his back.

[127] In the instant case, the defendant submitted that Ms. Kosoric failed to mitigate her loss through her failure to follow and adhere to an exercise routine, as outlined by her physicians and physiotherapists. The defendant further argued that Ms. Kosoric was continually reminded of the need to continue with an exercise program and the likely (positive) effects of such a program. Ms. Kosoric acknowledged, in cross examination, that her physiotherapist had told her that her spine strength could improve through exercise, which would assist her college studies with less disruption. Furthermore, Drs. Mitha and le Nobel both instructed Ms. Kosoric, on a number of occasions, to engage in regular strength and conditioning exercises, as it was important for her recovery.

[128] Both physiotherapists who submitted reports for trial also made similar recommendations. In his report, Mr. Rizzardo noted that he instructed Ms. Kosoric to adhere to an exercise program “constantly”, even when she was feeling “close to normal”. Similarly, Ms. Guglielmini stated that Ms. Kosoric should continue with an exercise programme, involving three sessions per week over a 12 to 15 week period.

[129] In the period following the Accident, I acknowledge Ms. Kosoric’s life was difficult, in the sense that she had experienced a traumatic incident that had mental and physical impacts, her mother was diagnosed with cancer and she commenced a difficult and demanding educational program. However, this does not absolve her of her duty to take reasonable steps to minimize her loss, particularly in light of the fact that the recommendation was conservative and would likely lead to reduced difficulties at school, work and in life generally. I note that when Ms. Kosoric did perform exercise, there was no aggravation of her injuries nor did it cause additional pain.

[130] There is evidence that Ms. Kosoric did perform some exercise since the Accident, however, the evidence also demonstrates this was done infrequently over the past five years. In her evidence, Ms. Kosoric admitted that the recommended exercise program was not a high priority for her during this period.

[131] Based on the evidence, I conclude that following a regular exercise programme would have had positive effects on Ms. Kosoric’s symptoms. Since the medical evidence does not state the precise effectiveness of exercise, I must therefore determine what role this would have played in improving her symptoms: see Briglio, trial decision, at para. 149.

[132] I will take into account the plaintiff’s failure to adhere to an exercise routine in my assessment of non-pecuniary damages.

Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

Written by admin on February 3, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 39 Comments on Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

If you are jaywalking and are injured in a BC Car Accident, can you make a claim for pain and suffering? The answer is it depends on the circumstances.
Reasons for judgment were released today by the BC Supreme Court illustrating the principle that simply because someone is in breach of the law at the time of a car crash they can still succeed in advancing a negligence claim (a claim for pain and suffering and other damages against another party).
In today’s case (Lemesurier v. McConnachie) the Plaintiff was injured when she was struck by a vehicle as she was crossing Victoria Street in Trail, BC. At the time she was jaywalking. For this she was found at fault for the collision. However, the court also found that the motorist that struck the Plaintiff at fault concluding that the motorist was not driving with appropriate caution at the time of the collision. The court made the following analyisis in finding the jaywalker 60% at fault for the crash and the motorist 40% at fault:

[21] Where, however, there are circumstances known to a motor vehicle operator, that render questionable the presumption that the rules of the road will be respected by pedestrians, the exercise of due care is not met by behaving in accordance with the presumption. One cannot be deemed to presume facts at odds with known circumstances. “Due care” on the night of this accident included the known, and (by the plaintiff), specifically observed circumstance that there were pedestrians about and, that given the nature of the event, they might not be taking all due care for their own safety. This required an extra degree of caution in the circumstances. The plaintiff acknowledged this herself in turning into the centre lane to avoid pedestrians.

[22] The question then becomes whether the plaintiff has proved that the plaintiff’s want of due care, applying s. 181, contributed to the collision. Liston v. Streiger, CA 18770, CA19363 Vancouver Registry (June 25, 1996) is a case in which the Court of Appeal apportioned negligence 60-40 against a pedestrian who was struck in Penticton during the “Peach Festival” in a somewhat comparable atmosphere, in that the exercise of due care included adjusting ones’ driving habits to accommodate the possibility of careless behaviour by pedestrians. There the facts, as found by the trial judge and accepted by the Court of Appeal, included the plaintiff “running barefoot across a busy street at night, in a poorly lit area in a state of intoxication… she glanced into the curb lane and proceeded to run into it … .”

[23] The defendant’s position is that apart from any discussion of legal presumptions and duties, the effect of the evidence is that the plaintiff simply ran into the defendant’s car in circumstances where the defendant had no opportunity to avoid striking her. The widths of the lanes established in evidence suggest that the distance from the curb to the point of impact is not great and could be traversed in a matter of seconds by a person who was running. The defence submits that the plaintiff’s evidence that she simply did not see the defendant until she was upon her may be attributed to the probability that the plaintiff was running.

[24] The useful evidence is, again, that of the defence witness Ms. Howes. Apart from establishing that the collision occurred while the traffic signals were against the plaintiff, and that the plaintiff was not in the crosswalk, Ms. Howes’ evidence is that she saw a large group of people crossing the road from her vantage in the intersection. Some were running. Her evidence is that the plaintiff was among the last of that group attempting to cross. Ms. Howes saw shadows crossing the road and had enough time to form the impression that someone was going to be hit because approaching cars were not slowing down.

[25] I accept that Ms. Howes probably saw the plaintiff running. It may well be, as the defence assets that she ran right in front of the car leaving the defendant very little time to react to her specific presence. This does not, however, explain how the defendant could approach the intersection without slowing or without the utmost caution given that a large group of people had proceeded to cross moments before contrary to the traffic signal. The effect of Ms. Howes’ evidence, which I accept, is that the presence of people on the road was manifest, and that the defendant should have been alert to that fact. She should not, in view of the circumstances, have been “surprised” by pedestrians behaving as the plaintiff did.

[26] I am of the view that the plaintiff should bear the larger portion of the responsibility for what happened to her. With respect to the division of liability, I find it difficult to distinguish the relative degrees of responsibility here from those established in Liston (supra). Accordingly, I divide responsibility for what occurred 60% to the plaintiff and 40% to the defendant.

This case goes to show that simply because one party is breaking the law at the time of a BC car crash another party can still be (partially or wholly) responsible. Each case turns on its own circumstances and a breach of a law of one party will not excuse careless driving by another when it comes to the law of negligence (the law that governs ICBC claims for pain and suffering).