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Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 67 Comments on Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

$50,000 Punitive Damages Award Against LawFirm Upheld

Written by admin on . Posted in Uncategorized.

Reasons for judgment were released today dealing with a fee dispute between a personal injury plaintiff and his lawfirm.
The Plaintiff was involved in a serious motor vehicle collision in 1995.  The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.
A fee dispute arose after this settlement and litigation ensued.   At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm.  This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.
The lawfirm appealed for various grounds.  In a split decision, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.
The award of punitive damages was based on a finding that ‘the totality of the actions and conduct of the appellant (lawfirm) in its abuse of power in its relationship with its clients, as well as in its approach to the litigation, established the need for an award of punitive damages to express the court’s disapproval of such conduct and to serve as a general deterrent‘
The court summarized the actions of the lawfirm as follows:
[99]            I think that any legal professional would find the conduct of the appellant in this matter to be most disquieting.  The appellant took substantial legal fees after deceiving the respondents and without addressing the position of conflict it was in.  It placed its own interests ahead of those of its unsophisticated clients.  The appellant provided inadequate supervision of Mr. Shaw with full knowledge of the requirements of the Law Society.  Instead of denouncing the obviously reprehensible conduct of Mr. Shaw and setting matters right, it sought to take the benefit of that conduct.  The appellant is vicariously liable for the conduct of Mr. Shaw and is directly liable for its own failure to take remedial action when such action was obviously called for.
The BC Court of Appeal did not disturb the trial judge’s award of $50,000 in punitive damages.
This case is worth reviewing in its entirety for anyone interested in the law dealing with contingency fee agreements and the duties of lawyers to their clients in British Columbia.
 

More on ICBC Claims, Impaired Driving and Civil Consequences in BC

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgment were released on November 21, 2008 awarding a Plaintiff just over $230,000 in damages as a result of injuries and losses sustained in a 2004 Vancouver Island motor vehicle collision.
The Defendant was impaired by alcohol when the collision occurred.   As a result the Defendant was in breach of his ICBC insurance and ICBC defended the action as a statutory Third Party.  In such situations the issue of fault is rarely admitted and although that was the case here liability was not seriously contested at trial and the court found the impaired driver wholly liable for the crash.
It was a significant crash and the Plaintiff sustained various injuries.  The most contentious injury of the Plaintiff was a hip injury and the reasons for judgment focus largely on whether the Plaintiff’s hip ongoing hip problems were causally related to the collision.  The court found in the Plaintiff’s favor with the key findings being made at paragraphs 75-79 which I reproduce below:

[75]            The findings of Dr. Leith indicate a causal connection between the plaintiff’s hip injury and the Accident.  Dr. Leith found that Mr. Hartnett’s left hip injury is a soft tissue injury to the left greater trochanter region of the hip.  Dr. Leith concluded, at pages 4 and 5 of his report, that Mr. Hartnett’s hip symptoms are “most likely the result of the subject MVA based on the temporal relationship to the Accident and the fact that there is no indication that Mr. Hartnett had any pre-existing conditions to these areas”.

[76]            Dr. Leith’s finding that Mr. Hartnett had no prior injuries to his hip is consistent with the evidence led at trial.  The evidence did not disclose that Mr. Hartnett had any hip problems, or physical limitations in performing road service prior to the Accident.  Further, the evidence of Mr. Hartnett and his wife demonstrates Mr. Hartnett’s willingness to work through pain and his stoic nature.  Mr. Hartnett’s reluctance to disclose his hip injury to his physicians does not indicate a lack of connection between the Accident and the injury.  Rather, it simply demonstrates that Mr. Hartnett was reluctant to complain about his hip injury based on his personality and his hope that it would gradually heal on its own. 

[77]            I find Mr. Hartnett’s hip injury is casually related to the Accident since the evidence demonstrates, on a balance of probabilities, that he would not be suffering a hip pain but for the Accident.

FUTURE PROGNOSIS:

[78]            The reports of Drs. Leith and Gilbart both indicate the prognosis for Mr. Hartnett’s injuries is positive and that surgery will not be required.  Neither examination finds any substantive problems in Mr. Hartnett’s hip, which is his principal, ongoing complaint, along with his shoulder and lower back.  Based on an initial review of these reports, it may seem that the severity of Mr. Hartnett’s injuries is minimal and any corresponding impacts on his work and personal life would also be negligible.  However, I am persuaded, based on the evidence of Mr. Hartnett and his wife, that the injuries to his hip, lower back and shoulder are in fact significant and continue to cause him considerable pain during various physical activities, especially certain aspects of his employment, recreation and home maintenance activities.  I found that both Mr. Hartnett and his wife gave their evidence in a straightforward and honest manner with respect to their recollections and assessments of the Accident and its impact on Mr. Hartnett and the family.  I also agree with the conclusion reached by Dr. Leith, that given the time elapsed since the Accident and the extent of Mr. Hartnett’s pain, it is likely that these injuries will continue to affect him in the future.

[79]            It is clear that Mr. Hartnett experiences greater amounts of pain while working road service, as compared to yard service.  He has twice attempted to work road service since the Accident, for a total of 12 months, and found the job duties resulted in a significant increase in pain.  As a result, he was forced to elect yard service because the job requirements in that position, while still painful, were more manageable.  Based on all of the evidence, I find these injuries will continue to adversely affect Mr. Hartnett for the foreseeable future.  

The court awarded the following damages:

·         Non-pecuniary damages:                                 $60,000

·         Loss of income-earning capacity:                  $150,000

·         Loss of home maintenance capacity:                          $10,000

·         Past wage loss:                                                 $16,280

  • Future cost of care:                                             $1,000

I have previoulsy blogged about the civil consequences of impaired driving in BC and cases like this serve a stark reminder that the financial consequences can be significant.  As an ICBC personal injury claims lawyer I have unfortunately seen the long term impact of impaired driving too many times.  If a person drives drunk in BC and negligently causes injury to another they can be held in breach of their insurance.  If this happens ICBC (assuming they follow the statutory protocol) have the right to defend resulting tort claims as a ‘statutory third party’ and after they pay the settlement or judgement can come after the Defendant directly for repayment.  Unlike most creditors ICBC enjoys certain statutory rights which give them greater teeth to collect from a breached defendant.  This case shows that the financial consequences of impaired driving causing injury in BC can easily be in the hundreds of thousands of dollars.

$55,000 Non-Pecuniary Damages for Musculoligamentous Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.
Both collisions were rear-end crashes.  The first occurred in February, 2004, the second in July of the same year.  Fault was admitted by ICBC on behalf of the Defendants in both accidents.  This trial dealt with quantum of damages (value of these injury claims).
The Plaintiff had generally good health before the collisions.   After the collisions she suffered from various symptoms.  The extent of her injuries and their relationship to the crashes was at issue at trial.
The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions.  The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.
The court awarded damages as follows:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

ICBC Claims, Surveillance Video and Disclosure

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 38 Comments on ICBC Claims, Surveillance Video and Disclosure

Reasons for judgment were released today by the BC Court of Appeal dealing with the timing of disclosure of non-privileged video surveillance of a Plaintiff involved in a tort claim.
In this case the Plaintiff sued for damages as a result of 2 motor vehicle collisions.  The Defendants insurer retained a private investigator to conduct surveillance of the Plaintiff.
In the course of the lawsuit the Plaintiff triggered Rule 26 (which, when complied with, requires the opposing party to provide a list of documents relevant to the action).  The Defendants listed the video surveillance as non-privileged but refused to produce the tape of the Plaintiff until after her examination for discovery claiming that Rule 26(1.2) permits them to delay production of this document because the credibility of the Plaintiff was a central issue of this claim and if the supposedly damaging tape was disclosed prior to discovery that would somehow compromise the defendants ability to examine her for discovery. 
The Plaintiff applied to court for production of the tape and succeeded.  The Defendants took the case up to the Court of Appeal.
The Court of Appeal dismissed the appeal and gave the following insightful reasons discussing the intent of Rule 26(2.1)

[22]            Generally speaking, the burden of proof is on the party making an application.  That burden is to the standard of a balance of probabilities.  I see no principled reason why an application under R. 26(1.2) should be treated any differently.   In this case, the appellants are the applicants seeking a postponement of production of the Investigative Report.  In my view, they have the burden of establishing the grounds for such an order on a balance of probabilities.

[23]            Both sides contend that Blank, the seminal decision on the scope of the exemption for litigation privilege, supports their respective positions that the trend in disclosure of documents favours broadening (the appellants) or restricting (the respondent) of the exemption.  With respect, I do not find these submissions offer assistance in this appeal.  The circumstances of this case do not involve a request for disclosure of a privileged document but, rather, a request to postpone production of a relevant, non-privileged document.  In my view, the issue raised in this appeal requires an inquiry into what factors might negate the mandatory production of relevant, non-privileged documents in an action…..

[37]            I am not persuaded these authorities support the appellants’ position that the common law permits the postponement of non-privileged documents in order to permit a party to challenge the credibility of the opposing party.  On the other hand, neither am I persuaded that the policy considerations relied upon by the chambers judge, namely that prior disclosure may save the cost of discoveries as well as court time, preclude trial by ambush, or advance settlement, are relevant considerations.  In my view, the scope of R. 26(1.2) must be decided by reference to the legislative intent of its drafters and a principled application of the competing rights provided by the Rules of Court to parties in an action.   

[38]            The express wording of R. 26(1.2) allows for exclusion from compliance with R. 26(1), not the postponement of its compliance.  To read in language importing a temporal factor is not, in my view, in keeping with the approach to statutory interpretation adopted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] S.C.R. 559 at 26, where the Court endorsed the modern approach to statutory interpretation: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.  In determining the scope of the exemption provision in R. 26(1.2), I am of the view the Court must consider only those circumstances in which valid policy concerns might support the decision to exclude (not postpone) production of a relevant, non-privileged document.  …

[45]            There has been much debate over the broad scope of the Peruvian Guano rule, which stated in Murao at para. 12 requires disclosure of “every document … which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit [making the demand] either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a chain of inquiry which may have either of these consequences”.  In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations.  Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2). 

[46]            The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim.  They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape. 

[47]            With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2).  In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof.  This is the appellants’ theory of liability, and it is for them to establish in the course of the trial.  Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

[48]            The court in Bronson v. Hewitt, 2007 BCSC 1477,  52 C.P.C.(6th) 116 reached a similar conclusion in dismissing an application for the exclusion of the defendants from one another’s examination for discovery over concerns they might tailor their evidence to fit the evidence of the other.  Credibility was a key issue in that case.  Citing Sissons v. Olson (1951), 1 W.W.R. (N.S.) 507 (B.C.C.A.), Goepel J. stated at para. 17 that “exclusion was only appropriate if necessary to ensure the fair and proper judicial conduct of the action.”

[49]            Another similar conclusion was reached in McGarva v. British Columbia, 2003 BCSC 909.  That case involved a damages claim for breach of fiduciary duty against the Crown by a plaintiff who had been abused while in foster care.  The plaintiff sought disclosure of similar fact evidence from the Crown.  The Crown, in turn, applied for a postponement of disclosure of that evidence in order to avoid the potential of the plaintiff tailoring her evidence to fit the similar fact evidence.  Credibility was a key issue in the action.  Madam Justice Gray declined to impose such a term on the disclosure of the relevant documents, stating that there was no basis for her to restrict the plaintiff’s receipt of this information.  In her view, the Crown’s position was not prejudiced because it would remain open to the Crown to argue, at trial, that the plaintiff had tailored her evidence to conform to any similar fact evidence disclosed to her before her examination for discovery (para. 17).

[50]            The final submission by the appellants is that, in our adversarial system, the right to cross-examination is sacrosanct and should not be trumped by disclosure.  However, this argument mischaracterizes the issue.  Rule 26(1.2) does not limit the appellants’ right to cross-examine the respondent.  The respondent’s credibility may be challenged in any number of ways, including the use of a prior inconsistent statement on cross-examination, the lack of adequate explanation for any apparent discrepancies between the respondent’s actions in the surveillance videotape and her reported disability, and by other evidence tendered at trial that might dispel the legitimacy of her claims.

[51]             In summary, I am not persuaded that R. 26(1.2) was intended for the purpose of restricting the right of a party, at an examination for discovery, to prior knowledge of all relevant and non-privileged documentation in the examining party’s possession and control, in order to permit the latter to advance its theory of the case where credibility of the former is a key issue in the litigation.  

[52]            I would dismiss the appeal and award costs of the appeal to the respondent in any event of the cause.

I should point out that this case does not address the more typical fight about the release of surveillance video in a tort claim that is supposedly privileged.  In this case it was agreed that the tape was not privileged.  This case is useful, however, because the Court of Appeal references many precedents addressing the issue of litigation privilege and the disclosure of video surveillance.

The Implied Undertaking of Confidentiality and ICBC Claims

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on The Implied Undertaking of Confidentiality and ICBC Claims

Interesting reasons for judgement were released today dealing with the issue of whether a plaintiff in an ICBC tort claim has to produce materials from previous legal proceedings.
In this case the Plaintiff alleged injury as a result of a 2005 BC motor vehicle accident.  The Plaintiff was involved in previous legal proceedings.  The defence lawyer asked the court for production of 3 documents which were contested, specifically

(a)        a copy of the medical report of Dr. Bloch requested by Ms. (the Plaintiff;s) counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);

(b)        a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;

(c)        a copy of the transcript of the plaintiff’s examination for discovery in the Great West proceeding.

The court first dealt with the issue of whether the current defendant was entitled to the plaintiff’s examination for discovery transcript from a previous legal claim.  The court reproduced paragraphs 51 and 53 of the leading Supreme Court of Canada Decision dealing with the ‘implied undertaking’ of confidentiality of examination for discovery transcripts, specifically:

 

51.       As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant’s privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d’Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.

53.       I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant’s transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.

The court in this case refused the defendants motion to produce the plaintiff’s previous discovery transcript and the plaintiff’s previously obtained medico-legal report holding that 

On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A.  I am also of the view that the same must be said of the medical report of Dr. Bloch.  That report was a document created for the previous proceeding.  There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial.  In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege.  The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.

The court however, did order that the transcript of the plaintiff’s previous submissions in a cmall claims court action be produced holding that:

The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter.  That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence.  In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005.  In my view, any undertaking regarding those submissions was spent by their use in that proceeding.  

 

Deductions of ICBC Part 7 Benefits in BC Tort Claims

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 51 Comments on Deductions of ICBC Part 7 Benefits in BC Tort Claims

Reasons for judgement were released today addressing the deductions of ICBC Part 7 benefits from a tort award.
If you are injured in a BC car crash and are insured with ICBC you have the right to apply for your ICBC No-Fault Benefits.  These include certain rehabilitation and wage loss benefits.   Whether or not you are at fault for the collision you should apply for these part 7 benefits.
In your tort claim (your claim for compensation against the at fault motorist) the defendant can argue that any amount he/she needs to pay you in damages should be reduced by the amount of Part 7 benefits you are entitled to. Whether or not you actually received these benefits is irrelevant!
In today’s case the trial judge awarded various damages including $10,000 for the cost of future medical care.  The defendant argued that the $10,000 award should be deducted because the Plaintiff could receive payment from ICBC directly for those future medical expenses.
The court dismissed this defence argument finding as follows:

[22]            In this case, I am persuaded that there is an issue about whether the plaintiff’s medication is covered by Part 7 at all, given that it not only provides benefits incurred by the insured as a result of the injury but also from conditions exacerbated by the accident.

[23]            I find that the amount awarded for the cost of future care, particularly medication, is not to be deducted from the judgment.

This case summarizecd the law of Part 7 benefit decutions very well, particularly the court held that:

1.         When considering a s. 25 deduction, the central question is whether the plaintiff is a person who is or would have been entitled to Part 7 benefits.  If the answer to that question is affirmative, the court must estimate the value of further payments that the Corporation is authorized or required to make under the Regulation, and deduct that amount from the judgment: Sovani v. Jin, 2005 BCSC 1285, 47 B.C.L.R. (4th) 97.

2.         Issues between the plaintiff and ICBC over delivery of Part 7 benefits are not relevant considerations in determining a s. 25 deduction: Sovani.

3.         The court has no discretion to reduce an estimate of future s. 88(1) benefits for the purposes of a s. 25 deduction: Ayles (Guardian of) v. Talastasin, 2000 BCCA 87, 73 B.C.L.R. (3d) 60.

4.         Medication is an expense that falls under the mandatory or non-discretionary provision of s.88(1) of the Regulation: Ayles.

5.         Section 88(1) requires the Corporation to pay benefits for all reasonable expenses incurred by the insured as a result of the injury.

6.         The plaintiff may have had a pre-accident underlying “disease” entitling the Corporation to invoke an exemption from liability contained in s. 96(f) of the Regulation: Mawji v. Insurance Corporation of British Columbia, 2001 BCSC 1610.

7.         Trial judges must be cautious in estimating s. 25 deductions and any uncertainty as to entitlement must be resolved in favour of the plaintiff: Schmitt v. Thomson, 18 B.C.L.R. (3d) 153, 132 D.L.R. (4th) 310 (C.A.); Lynne v. Pearson, 55 B.C.L.R. (3d) 401, 111 B.C.A.C. 139.

If you are insured with ICBC and are injured by another in a BC car crash make sure you apply for your Part 7 Benefits.  If you don’t it can take money right out of your pocket in your tort claim and cases such as this one are a stark reminder that ICBC often makes such an argument in tort claims.

$75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.
The Plaintiff was 23 years old at the time of trial.  He was injured in 3 collisions, the first of which occured when he was only 10 years old.
The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).
The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years.  The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.
Damages were awarded as follows:

Non-pecuniary damages                                            $ 75,000

Loss of Earning Capacity                                           $100,000

Cost of Future Care                                                    $  12,650

Special Damages                                                       $    3,570

Past Income Loss                                                       $       698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings.  That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury.  Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.
Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine.  Specifically he noted that: 
[19]            The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms.  There have been few objective physical findings.  However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years.  It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.
 

$35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 52 Comments on $35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $45,000 in total damages as a result of a 2004 BC car crash.
The crash was significant.   The Plainitiff was travelling at 60 kilometers per hour when his vehicle was struck head on by the Defendant.  The Plaintiff’s vehicle was destroyed as a result of the impact.
The court found that the Plaintiff suffered various soft tissue injuries as a result of this crash and that these injuries plateaued by the end of 2006 to about 90% of the Plaintiff’s pre accident level.   The court’s key findings are made at paragraphs 28-31 which I set out below:

[28]            On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29]            I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30]            I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31]            I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect (the Plaintiff) in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in (the Plaintiff’s) usual activities on a sporadic basis, perhaps every month or so.

The following damages were awarded:

a)         non-pecuniary damages of $35,000.00;

b)         past income loss of $8,250.00;

c)         special damages of $2,786.15; and

d)         court order interest on the past income loss and special damages awards.

 

Passenger Found Liable for Grabbing Steering Wheel of Vehicle

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Passenger Found Liable for Grabbing Steering Wheel of Vehicle

(Please note the case discussed in this article went before the BC Court of Appeal in March, 2010, you can click here to read my post discussing the Court of Appeals Reasons)
Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004.  The vehicle left the roadway, hit a ditch and over-turned.  3 of the 4 occupants sued for personal injuries.
The front seat passenger grabbed the steering wheel while the vehicle was in operation.  The vehicle then lost control.  The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night.  Hers was the only memory subject to the confounding effect of excessive alcohol consumption.  I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41] Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol.  The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish.  I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did.  The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel.  I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42] I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night.  Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43] In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch.  (the driver) was not negligent and did not contribute to the cause of the accident.  (the driver) was sober and was competent to drive the Jeep.  No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.
In this case the vehicle was owned by the front seat passenger’s father.  He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle.   Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86 (1)        In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner, or

(b)        acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle.  In fact the court found that:
[24] The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession.  His purpose for imposing that rule was to keep the children and his cars safe.  That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends.  The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.
The court found that the father (owner) did consent in these circumstances finding that:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!
Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle.  Specifically the court found that:

[51] When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory.  As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52] For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it.  (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.