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ICBC Defence Lawyers and Ethical Obligations to their Client

Written by admin on . Posted in Uncategorized.

I have previously blogged about ICBC lawyers and ethics obligations and I write more on this topic.
If you are sued for a BC car accident and are insured by ICBC they will appoint a lawyer to defend your claim.  That lawyer has 2 potentially conflicting duties, they are 
1.  To you the client
2.  To ICBC (the client that is paying the bills)
This ‘joint retainer’ is permitted by the Law Society of BC provided that the interests of YOU THE CLIENT and ICBC don’t conflict.  If there is a conflict the lawyer must withdraw form the joint representation.
The Law Society’s Ethics Committee published information recently to hep ICBC defence lawyers to “avoid allegations of bad faith and professional negligence‘.  I thought this would be useful information for members of the public as well, particularly for anyone who may be concerned about the approach that a lawyer appointed by an insurance company in the defence of a tort claim is taking.  
Below is the article in it’s entirety which I am reproducing from the Law Society’s website:
http://www.lawsociety.bc.ca/publications_forms/alert/03-02.html

Avoiding allegations of “bad faith” and professional negligence in defending third-party liability claims

A lawyer appointed by an insurer to defend a third-party liability claim has two clients: the insurer and the insured. The lawyer owes obligations to both clients and, as discussed below, the insurer owes obligations to the insured. Care must be taken by the lawyer to identify and avoid conflicts of interest between the two clients and to ensure that they are both fully protected.

The words “bad faith” might conjure up the image of an uncaring lawyer who allows an insurer to disregard the interests of an insured when handling the defence of a claim. Such an approach by a lawyer is in fact very rare – almost without exception, counsel who are appointed to defend third-party liability claims recognize their obligations to both clients and do their best to provide thorough and timely advice as well as competent service. However, with the increasing size of damage awards, situations where there is inadequate insurance are becoming more frequent.

Although allegations of bad faith and professional negligence can arise in various circumstances, the risk is greatest when the insured faces a potential claim for damages for an amount greater than the available third-party insurance policy limits. Claims against insurers and defence counsel by insureds who find themselves facing large judgments in excess of their policy limits tend to fall into two broad classes:

  • failing to settle the case before trial for an amount within the policy limits, or
  • failing to provide a full defence and thus minimize the extent of the excess judgment.

It is almost invariably the insurer who has the ultimate power to make decisions about settlement and conduct of the defence. However, when an insured claims that the insurer has breached its good faith obligations in this regard, the insured and in some cases even the insurer may seek to shift blame for this to defence counsel.

Staying out of hot water

The Lawyers Insurance Fund has received increasing numbers of reports in recent years relating to the defence of actions arising out of motor vehicle accidents. A review of them gives rise to a number of observations and suggestions. These may help BC lawyers avoid being drawn into bad faith litigation if there is a judgment in excess of the available insurance limits:

  • Write to the insured at the outset to advise of the retainer, its scope and its limitations. Be sure that the insurer is also aware of the scope and limitations of the retainer.
  • Once appointed to defend, do not advise either party on insurance coverage issues. Do not act on behalf of the insurer in any action relating to insurance coverage issues (including Part 7 actions). Be aware of what the coverage issues are, so that you can identify conflicts and avoid them.
  • If there is a possibility of a claim exceeding the limits, write to the insured advising of the risk of an excess judgment and the insured’s personal exposure to execution, recommend independent legal advice, advise of the possibility of conflicts of interest and explain your limited role – the defence of the case only. Instructions from the insurer are not required to send this letter. If the insurer has already provided such notice to the insured, review it for sufficiency.
  • Consider recommending that the insurer obtain independent legal advice on any coverage issues and its obligations to its insured. Many insurers will be well aware of the need to do so, but there may be circumstances where it is appropriate to remind the insurer that such matters are not part of your role as defence counsel.
  • Consider recommending that the insurer pay for independent counsel for the insured where there is significant uninsured exposure and where the insured is unable or unwilling to pay for counsel.
  • Keep the insurer and the insured or insured’s independent counsel fully informed of all material information and developments. This includes providing copies of all reports to the insured or independent counsel.
  • As with any case, conduct an investigation and assessment of liability and quantum and be alive to the need to revisit these issues with the emergence of additional information. If expert evidence may be helpful, seek instructions to obtain it. If there may be contributory negligence, seek instructions to develop the evidence to prove it.
  • Be aware of and advise the insurer and the insured or independent counsel of all possible sources of recovery, including other insurance and third-party claims. It may be appropriate to advise independent counsel or the plaintiff’s lawyer that other possible sources of recovery could be pursued.
  • Insurers are becoming increasingly concerned to limit defence costs. As an outgrowth of that concern, counsel are often put on a “short leash.” Be vigilant to ensure that the duties owed to the insured are not compromised by paying too much attention to the insurer’s concern with the “bottom line.” Most often these matters are capable of being resolved through a frank and open dialogue with the insurer. In those rare cases when a disagreement remains between counsel and the insurer on what is required to provide a full defence, advise the insurer and the insured or independent counsel of those concerns.
  • Avoid making any admissions without the informed consent of the insured.
  • With respect to settlement negotiations, advise both the insurer and the insured, or the insured’s independent counsel, of all offers made by other parties. Provide recommendations on all offers received and on offers that could be made on behalf of the insured. Address settlement at all stages of the litigation, even the early stages if it is apparent that the claim is likely to exceed the limits. When offers are extant, follow up to obtain instructions promptly.
  • Be alive to the possibility of conflicts at all times. When acting for more than one defendant, consider whether there are any conflicts between them.
  • Record your advice, instructions and steps taken in writing.

Most cases settle shortly before trial, a time when you will be preoccupied with preparation for trial. By addressing the issues outlined above well in advance, you will help ensure that the insurer and the insured are better prepared to address their relationship with respect to coverage and settlement issues should these arise immediately before trial.

The insurer’s duty to the insured

The leading two cases in BC respecting “bad faith” claims against insurers are Fredriksonv. Insurance Corporation of British Columbia (1990) 44 BCLR (2d) 303 (SC) and Shea v. Manitoba Public Insurance Corp. (1991) 55 BCLR (2d) 15 (SC). Both decisions arise out of motor vehicle accident claims, although most of the principles will likely apply in the handling of other liability cases. Defence counsel should be familiar with each case. As noted, when insurers breach their duties of good faith, defence counsel may be drawn into ensuing bad faith litigation for alleged failure to prevent this from happening.

In Shea, Finch, J. (as he then was) recognized the legitimate interest of an insurer to try to effect a saving on the policy limits if there exists a reasonable prospect of settling the claim for less than the limits (as was the case in Fredrikson). However, the insurer has no legitimate interest in trying to settle a claim for less than the policy limits when it is clear (as it was in Shea) that the claim will exceed the available coverage.

The obligations of an insurer to its insured, where the insured faces an excess exposure, were summarized by Finch J. in Shea, as follows:

I would summarize my view of the law touching on the insurer’s duty to its insureds in the circumstances of this case as follows:

1. The relationship between insurer and insured is a commercial one, in which the parties have their own rights and obligations;

2. Within the commercial relationship, special duties may arise over and above the universal duty of honesty, which do not reach the fiduciary standard of selflessness and loyalty;

3. The exclusive discretionary power to settle liability claims given by statute to the insurer in this case, places the insured at the mercy of the insurer.

4. The insureds’ position of vulnerability imposes on the insurer the duties:

a) of good faith and fair dealing;

b) to give at least as much consideration to the insureds’ interests as it does to its own interests; and

c) to disclose with reasonable promptitude to the insured all material information touching upon the insureds’ position in the litigation and in the settlement negotiations;

5. The fact that the insured is at the mercy of the insurer for the purposes of settlement negotiations gives rise to a justified expectation in the insured that the insurer will not act contrary to the interests of the insured or will at least fully advise the insured of its intention to do so;

6. While the commercial nature of the relationship permits an insurer to assert or defend interests which are opposed to, or are inconsistent with, the interests of its insured, the duty to deal fairly and in good faith requires the insurer to advise the insured that conflicting interests exist and of the nature and extent of the conflict;

7. The insurer’s statutory obligation to defend its insured imposes on the insurer, where conflicting interests arise, a duty to instruct counsel to treat the interests of the insured equally with its own; and where one counsel cannot adequately represent both conflicting interests, an obligation to instruct separate counsel to act solely for the insureds, at the insurer’s own cost;

8. The insurer’s duty to defend includes the obligation to defend on the issue of damages, and to attempt to minimize by all lawful means the amount of any judgment awarded against the insured. In this case, that would include arguing that court order interest and no fault benefits are payable in addition to the policy limits, where such an argument is available in law; and

9. Defence preparations and settlement negotiations must take place in a timely way and, where last minute negotiations are required, advance planning must be made to ensure that the insureds’ interests are given equal protection with those of the insurer.

*  *  *

If an insurer complies with these guidelines, there is little likelihood that a claim will be advanced against the insurer for bad faith or against counsel for professional negligence.

ICBC Claims and the Thin Skull Principle

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If you are injured through the fault of another in a BC motor vehicle accident and are an average person and receive average injuries you are entitled to be compensated for these.  What if you are not an average person? What if you are particularly prone to traumatic injury?  Would you be entitled to your actual damages or only those damages that the average person should have received?   The answer is actual damages.
There is a principle in law known as the ‘thin skull‘ principle sometimes referred to as the ‘you take your victim as you find them‘ principle.  If a person is careless and that carelessness causes injury it is no defence to say that the victim was particularly prone to injury or that the injury would have been less if the victim was tougher.  So long as the injuries are real and related to the wrongdoing the injued party will be entitled to their fair damages.
Reasons for judgement were relesed today involving a claim for significant emotional damages as a result of a 1999 BC motor vehicle accident.  The claim was largely dismissed but in doing so Mr. Justice Chamberlist reviewed several important legal principles of BC tort law including the Thin Skull Principle.    The court reference some of the leading authorities and set out the law at paragraph 11 of the judgement.  I set this out below.  

[11]            Commencing at para. 19, Mr. Justice Cumming succinctly set forth the law as follows:

19        One of the most important principles, for the purposes of this case, is the principle that, for the purposes of assessing damages, a tortfeasor must take the person injured by the tort in the actual condition of that person at that time.  This has been called the “thin skull” principle.  In its application to psychological problems it has been called the “egg shell personality” application of the principle.  In my opinion there is no basis for giving a more restrictive application to this principle in cases where psychological injuries are suffered than would be given in cases where only physical injuries are suffered.  A predisposition to suffer psychological injury in circumstances such as those brought about in a particular injury in circumstances such as those brought about in a particular case by a defendant’s wrongful act does not relieve the defendant of the liability to compensate the plaintiff for the injuries represented by those psychological symptoms.  Such relief could only occur, as I have said, if the psychological symptoms would have occurred in any event, even without the defendant’s wrongful act, through an application of the cause-in-fact test.  Examples of the application of the “thin skull” principle to the award of damages for psychological symptoms in circumstances where there was an existing predisposition include Enge v. Trerise (1960), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 17 C.C.L.T. 138 (Ont. C.A.), Elloway v. Boomars (1968), 69 D.L.R. (2d) 605 (B.C.S.C.), and Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.)

20        So, in this case, the evidence of Dr. Davis, accepted by the trial judge, to the effect that the plaintiff had a pre-existing disposition towards the psychological symptoms which actually occurred has no relevance in itself in the assessment of damages, as long as the first causation principle of cause-in-fact is met by it being established that the psychological symptoms would not have arisen but for the defendant’s wrongful act.

21        The other important principle, for the purposes of this case, as a principle applicable in dealing with questions of proximate cause, is the principle that a new intervening act, occurring after the defendant’s wrongful act, may given such a pronounced new impetus or deflection to the chain of causation that the original wrongful act of the defendant is no longer regarded as a sufficient cause upon which to rest legal liability.  That principle is sometimes referred to as involving the occurrence of a novus actus interveniens.

22        The application of the principle relating to intervening acts involves the difficult task of finding the facts correctly on the basis of the evidence.  It also requires a very nice judgment in balancing the causes of the psychological symptoms in order to decide whether the causes arising from the plaintiff’s own pre-existing subjective state and the plaintiff’s own individual conduct as well as from other sources such as the advice and actions of family, friends and healers, have had an independent new impetus or deflection on the existing chain of causation flowing through the defendant’s wrongful act, to such an extent that the defendant’s wrongful act must be regarded as a cause-in-fact for which no legal recovery is permitted.  At that point, the defendant’s wrongful act would no longer be sufficient “proximate cause” in law.  An example of a case where the cause-in-fact test was met, but the proximate cause test was not met because the plaintiff’s psychological symptoms were brought about by his own new acts after the accident and by his grief, so that the chain of causation was given a new impetus and deflection by his own acts which therefore constituted an intervening causative force, is to be found in Beecham v. Hughes (1988), 27 B.C.L.R. (2d) 1 (C.A.).

23        I propose to make three further observations before leaving this discussion of the principles governing the awarding of damages for psychological symptoms experienced by the victim of a tortious act. 

24        My first observation is that I think it is correct to treat a plaintiff’s own conscious wish to receive care, comfort and attention, or the plaintiff’s own conscious failure to exercise his or her willpower to bring about a healing of the symptoms, as coming within the principle of new intervening acts, and to treat those occurrences as giving such a sufficient new impetus or deflection to the chain of causation as to render the original wrongful act no longer a proximate cause.  But if the plaintiff’s wish to receive care, comfort and attention is accepted as being entirely unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, or if the plaintiff’s own failure to exercise his or her own willpower is unconscious and contrary to the plaintiff’s own apparent efforts to attain a healing of the symptoms, then I would not be prepared to say that the plaintiff is still excluded from compensation for the psychological symptoms.  In short, I think that the word “conscious” is implicit in points 3, 4, 5, and 6 that I have extracted from Mr. Justice Taylor’s reasons in Maslen.

25        My second observation arises from the concurring reasons of Madam Justice Wilson, sitting in the Ontario Court of Appeal, in Cotic v. Gray.  Madam Justice Wilson said, first, that the foreseeability test for remoteness of damage and the thin skull principle cannot co-exist in relation to psychological symptoms either directly brought about by the accident or triggered by the accident on the foundation of a predisposition to suffer such symptoms.

26        Madam Justice Wilson emphasized, second, that in a thin skull case, that is, a case of pre-existing vulnerability, the occurrence of the psychological symptoms should not, without more, be regarded as arising from a new sufficient cause in the nature of a novus actus interveniens.  Madam Justice Wilson said this, at p. 180:

In my opinion, it is inappropriate in a thin skull case to view the peculiar vulnerability of the victim as causative in law.  Undoubtedly as a factual matter the deceased’s psychiatric condition played a role in his subsequent suicide but the law would be taking away with one hand what it had given with the other if it were to permit the victim’s peculiar vulnerability to break the causal chain, or constitute a novus actus interveniens or, worse still, be treated as the effective cause of his damage.  I do not think it was open to the jury to view the motor vehicle accident and the deceased’s psychiatric condition as separate or concurring “causes” and to choose between them which was the “effective cause” of the death.  Given the deceased’s pre-existing mental frailty, the medical evidence referred to by my learned colleague established beyond peradventure that the accident and its effect upon Mr. Cotic drove him to his death.

27        I agree with those conclusions of Madam Justice Wilson.

28        My third observation is that there are many cases in which the assessment of damages depends upon an examination of this difficult area.  As Mr. Justice Taylor said inMaslen v. Rubenstein, we were referred to more than fifty authorities in argument in that case.  However, I wish to make a brief comment in relation to only British Columbia trial decisions.

29        Buteikis v. Adams (1994), 90 B.C.L.R. (2d) 213 (S.C.), is under appeal to this Court.  My comment is that I do not propose to say anything whatsoever about that case.

30        In Landry v. Cadeau (24 June, 1985), Vancouver B830850 (B.C.S.C.), it is suggested in obiter dicta that weakness of willpower should not enable a plaintiff to recover damages for psychological symptoms that cannot be healed by the weak will of the plaintiff, if a strong-willed person could have healed the same symptoms in the same circumstances.  To the extent that that suggestion is contrary to the application of the egg shell personality principle, I would not follow it.

31        In Smith v. Wensley (15 January, 1988), Victoria 85/0178 (B.C.S.C.), Mr. Justice Taylor said this, at p. 6:

It seems to me that if a person is reduced by an injury to a psychological state, so that continued pain is involuntarily experienced thereafter even though there is no physical basis for it, that pain might logically be attributed to psychological problems brought about by the accident, and the continued sensation of pain could properly be regarded in such a case as something caused by the accident.  But where depression or some other psychological condition leading the victim to experience revival or continuation of pain has not been shown to have been caused by the accident to which the pain is attributed, it cannot be said, for the purposes of the law, that a causal connection exists between the injury and the continued pain.  The only connection between them is that which exists in the mind of the sufferer – the injury is merely the subject on which the victim’s mind has happened to focus or “fixate” – and that is not, of course, sufficient to establish a connection in law between the injury and the continuing complaint.

32        It seems to me that there are two different types of psychological symptoms that may be covered by the principles that are here being discussed.  There are those where the psychological symptoms have their origin entirely in the defendant’s wrongful act.  Clearly they are compensable.  And there are those psychological symptoms where the defendant’s wrongful act triggers a pre-existing psychological condition so that both the defendant’s wrongful act and the pre-existing condition are causes-in-fact of the psychological injury.  In the latter cases the psychological injury will be compensable on the basis of a pre-existing thin skull, except only in cases where the psychological problem is so dominant as a pre-existing condition and the injuries sustained in the accident are so trivial that the accident can no longer be said to be sufficient cause in law to support an award of damages on the basis of proximate cause.

33        I have difficulty accepting that there will be any cases in which it could be said that damages should be refused on the basis that the injury suffered in the accident was merely the subject on which the victim’s mind has happened to focus or fixate, when it cannot also be said that if the accident had not happened something else would have provided the trigger for the focussing or fixating so that the psychological symptoms would have occurred in any event and the cause-in-fact test would not have been met.

34        It is noteworthy that though Smith v. Wensley was referred to in argument in Maslen v. Rubenstein, Mr. Justice Taylor did not return again to the notion that damages would not be awarded if the accident injuries were merely something on which the plaintiff focussed or fixated.  I think that if the focussing or fixating has its real origin in the accident, or if the focussing or fixating has its real origin in a pre-existing tendency to focus or fixate in that way, then the psychological symptoms arising from the focussing or fixating would be compensable unless the focussing or fixating would have occurred in any event, but would have chosen a different subject matter on which to crystallize, even if the accident had not occurred.

This case, and cases like it, are worth reviewing for anyone advancing an ICBC injury claim who was more prone to injury than the average person by virtue of their pre-existing physical make-up.

Can I Fire My ICBC Claims Lawyer?

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If you hired a lawyer to advance your ICBC tort claim on a contingency basis and are unsatisfied with the representation you are receiving, can you fire your lawyer?  The short answer is yes.
You are the client, you are in charge.   If you don’t like how your lawyer is handling your case you can send him/her packing.  HOWEVER, it will probably cost you money to do so.
Over the years I’ve been approached by numerous people indicating they wish to fire their current lawyer. My advice is almost always the same so I thought I would share it on this blog post.  Try to work things out with your lawyer.  Hiring a new lawyer means paying a new lawyer.  You want to avoid getting stuck with 2 legal bills for 1 Personal Injury claim if you can avoid it.  Often times the problems that strain the lawyer-client relationship are fixable.  Sit down with your lawyer, communicate your concerns and see if you can work out a solution.  If you can’t work things out then you can of course move on.  You need confidence in your lawyer to work towards a fair settlement of your ICBC claim.
If you want to fire your lawyer the first thing you should do is check your fee agreement.  A well written fee agreement will deal with how you can end your relationship with your lawyer and the consequences.  Often times a contingency fee lawyer will finance disbursements (expenses) involved in advancing an ICBC claim.  If you get a new lawyer you (or your new lawyer) will need to pay these expenses in order to get the file.
Arrangements will also have to be made to secure your former lawyer’s fees.   Often times the fee agreement will permit the lawyer to charge you an hourly rate for the work done prior to termination.  Other times the lawyer will be able to look at the final settlement amount and charge a fee based on how much his/her efforts contributed to the final settlement.  Typically a fired lawyer in these circumstances is prepared to wait until the case is settled to collect their fees but the disbursements usually need to be paid right away.
If you don’t think the lawyer is charging a fair fee for services you can have the lawyer’s account reviewed by a registrar of the Supreme Court.
If you don’t like your lawyer the  Bottom Line is this – Try to work things out, if you can’t, review your fee agreement and determine what your financial obligations to your lawyer will be.  From there get a lawyer that you trust and respect, if you don’t have confidence in your lawyer you will have a tough time working towards a fair settlement of your ICBC injury claim.

Court of Appeal Orders Re-Trial for Contributory Negligence in Bicycle Accident Case

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released by the BC Court of Appeal today ordering a new trial to deal with the issue of ‘contributory negligence’ of the Plaintiff.
The Plaintiff was an experienced tri-athlete and bicyclist.  He was
catastrophically injured in an accident on a steep and winding road in Langley on the morning of June 29, 2002.  Proceeding on his triathlon-model bicycle downhill towards a blind curve, he veered to the right to avoid a “cube” van coming over the centre line, lost control of his bicycle, travelled through a gap between two barriers at the side of the road, and fell down a ravine.  His spinal cord was injured at the C6-7 level, with the result that he has almost no sensation and almost no use of his body from his chest down and suffers chronic neuropathic pain.  He does have use of his arms and of his diaphragm muscles.  He has also been diagnosed with a mild traumatic brain injury.  He was 50 years old at the time of the accident.
Following a 33 day trial the BC Supreme Court found the Defendants liable in negligence and awarded close to $4.5 million for the Plaintiff’s severe injuries and damages.  The trial judge found that the Plaintiff was not contributorily negligent (that is that the Plaintiff was not even partially to blame for the accident).
The Defendants appealed on several grounds.  Their appeal succeeded on the issue of contributory negligence.  The BC Court of Appeal ordered that this issue be retried.  The court’s key finding of error at the trial level is set out at paragraphs 25-26 which I set out below:

[25]            The question that the trial judge was required to address was whether in all the circumstances Mr. Aberdeen was taking reasonable care for his own safety as a bicyclist, going down a hill he knew to be “nasty” and approaching a blind corner.  Did he use a wrong technique?  Was he going too fast?  Given that he was clearly exceeding the “advisory” speed for cars, was he creating an unreasonable risk of harm to himself as he rounded the curve?  Was he driving too closely to the centre line?  Should he not, if riding in a reasonably prudent manner, have been able to move to the right side of his lane, as Mr. McGee did, without losing control and going over the shoulder and off the road?  The trial judge did not answer these questions but, with respect, was content to base his conclusion of no negligence largely on the finding that Mr. Aberdeen could not have received a ticket.  As for the fact that the plaintiff and Mr. McGee had conversed, just before the accident, about the steepness of the hill, that could take one only so far.  As Lambert J.A. suggested in MacDonald v. Shorter [1991] B.C.J. No. 3714, 8 B.C.A.C. 179, it seems likely that “in the bulk of cases where negligence occurs, the negligent conduct is an exception to the general conduct of the person who is said to be negligent.”  (At para. 13.)

[26]            In these circumstances, I am reluctantly driven to the conclusion that the trial judge erred in failing to consider specifically whether Mr. Aberdeen had been taking reasonable care for his own safety.  (In addition, there was more than a “paucity” of evidence on the topic of speed, contrary to the trial judge’s finding.)  I would remit the issue of contributory negligence for retrial below

This case is worth reviewing for anyone involved in an ICBC tort claim involving a cyclist to see the types of factors BC courts look at when deciding whether a cyclist is partially responsible for an accident. 

ICBC, Tort Claims and Admitting the Issue of Fault

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

Reasons for judgement were released today dismissing a claim where a Plaintiff sued ICBC alleging that ICBC infringed on her right to ‘freedom of thought, belief, opinion and expression” as guaranteed by the Canadian Charter of Rights and Freedoms.
This is a somewhat unusual judgement.  The Plaintiff was involved in a car accident in 2003.  She was apparently ticketed for her driving and ‘she felt alright with accepting total fault for the accident, because her car was in the pathway (of the other vehicle) when his car collided with hers.’
The other driver made a tort claim against the Plaintiff thereby triggering her policy of insurance with ICBC.  ICBC appointed a lawyer and defended the claim.  Ultimately the claim settled and the Plaintiff was indemnified for the damages she had to pay to settle the other motorists tort claim.
In the lawsuit ICBC denied that their insured was at fault.  ICBC often does this even if the Defendant is likely at fault for an accident.  The Plaintiff appeared displeased with this decision.  Some friction arose between the Plaintiff and her insurer ICBC.   This friction surrounded meetings between the Plaintiff and her ICBC appointed lawyer in preparing her for her evidence at an examination for discovery.    The Plaintiff was apparently concerned that her lawyer was ‘trying to influence her version of how the motor vehicle accident occurred‘.’  Ultimately ICBC sent the Plaintiff a letter informing her that ‘there is some indication that (the Plaintiff) did not meet a condition of your insurance contract‘.  The condition referenced in the letter was apparently the condition of an insured to co-operate with ICBC as required by s. 73 of the Insurance Vehicle Regulation.
This letter triggered the above lawsuit whereby the Plaintiff alleged ICBC infringed her Charter rigths.  ICBC applied to dismiss the claim arguing that the lawsuit contained no bona fide triable issue.  Mr.  Justice Halfyard agreed with ICBC and dismissed the claim.  In doing so he found that “I think it is arguable that the statement of claim could be amended so as to allege a cause of action for conspiracy to suborn perjury…In my opinion, no useful purpose would be served in allowing the Plaintiff to amend the statement of claim.  It is my opinion that most of the possible causes of action fail to disclose any reasonable claim, and those that might be amended so as to allege causes of action for intimidation and conspiracy to suborn perjury are bound to fail‘.
This case, while a little off the beaten path, goes to show that ICBC (in the course of defending one of their insured in a tort claim) has the right to decide whether the issue of fault for an accident will be admitted.  As Mr. Justice Halfyard notes, 
 It was counsel’s duty to assess Ms. Joe’s statement of how the accident occurred, and to then advise I.C.B.C. as to whether or not liability should be admitted.  Under the regulations, I.C.B.C. had the exclusive authority to decide whether liability would be admitted, in whole or in part, on behalf of Ms. Joe.  Many cases occur in which I.C.B.C admits 100% liability on behalf of insured drivers who deny they were at fault for the accident.  In the present case, there was nothing improper in defence counsel and I.C.B.C. taking the initial position that Mr. Knight was partly at fault for the accident.  Mr. Knight had apparently admitted he was not wearing a seat belt.  That position was also justified by Ms. Joe’s description of her actions, even accepting the statement she claims to have consistently given.  But counsel would understandably want to pin down the version of events that she would be giving on discovery, in the circumstances of this case.  That could never amount to an attempt to make Ms. Joe deny that she was at fault.  It was for counsel to predict what degree of fault should be attributed to her, based on her own statement and the other circumstances surrounding the accident.
If you feel you are at fault for an accident the best thing you can do is let ICBC know this in no uncertain terms.  If any indication is given that ‘an insured’ is not at fault for an accident ICBC will likely put the issue of fault into play in any subsequent tort claim.

Left Turn Inersection Crashes and the Law in BC

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 63 Comments on Left Turn Inersection Crashes and the Law in BC

Reasons for judgement were released today by the BC Supreme Court concerning a 2005 intersection crash that occurred in the lower mainland of BC.
The Plaintiff was making a left hand turn from Hastings onto Willingdon.  At the same time the Defendant was operating a vehicle coming the opposite direction on Hastings.  A collision occurred.  There were no independent witnesses to this crash.  Both the Plaintiff and Defendant testified and as can be expected their evidence differed to several facts with each blaming the other for the crash.
Madam Justice Dardi preferred the Plaintiff’s evidence over the Defendant’s finding the Defendant testified in ‘an evasive and less straightforward manner’.
The court found that the Plaintiff was clearing the intersection on a stale yellow light and at the time the Defendant entered the intersection ‘it was not safe from him to do so on a very late stage amber or red light.  He should have stopped’.  The court found the Defendant 100% responsible for this intersection crash.
In reaching this decision Madam Justice Dardi summarized the law relating to left-hand turn intersection crashes as follows:

[34]            Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the right-of-way in situations where a driver is making a left turn:

When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[35]            An immediate hazard exists if the oncoming vehicle must make a sudden or violent avoiding action to prevent a collision: Aerabi-Boosheri v. Retallick, [1996] B.C.J. No. 143 at para. 8.

[36]            Section 128 of the MVA governs the duties of drivers when a traffic light turns yellow.  It states, as far as is relevant, as follows:

128      (1)        When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a)        the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety…

[37]            Who has the statutory right-of-way is informative; however, it does not determine liability in an accident.  Drivers with the statutory right-of-way must still exercise caution to avoid accidents where possible.  In Walker v. Brownlee, [1952] 2 D.L.R. 450, Cartwright J. states at paras. 46-47:

[46]      The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

[47]      While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

The Plaintiff suffered from various soft tissue injuries.  The court summarized the Plaintiff’s injuries at paragraph 57 as follows:
[57]            Dr. Steinson was an impressive witness.  I accept his opinion that the plaintiff has developed a myofascial pain syndrome in his neck and trapezius as a consequence of the injury in the motor vehicle accident.  I also find that the episodic pain that the plaintiff continues to experience is mild to moderate.  Dr. Steinson’s prognosis for the plaintiff is guarded.  Based on the medical evidence, the likelihood is that the plaintiff’s symptoms will continue to improve over the next few years although there is a possibility that his episodic pain may persist further into the future
The court awarded the following damages:

(1)        Non-pecuniary loss $30,000;

(2)        Loss of future earning capacity $20,000;

(3)        Cost of future care $2,000; and

(4)        Special damages $500.

British Columbia Bus Accidents and the Law

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

Reasons for judgement were released today dismissing the claim of a Plaintiff against the Greater Vancouver Transportation Authority for injuries sustained while on a bus in White Rock in 2005.
At some point after boarding the bus the Plaintiff stood up, “She held the floor-to-roof stanchion adjacent to the courtesy seat with her right hand.  She rotated clockwise so that her back was to the collapsible seat.  As she did so, she changed her grip in order to hold the stanchion with her left hand.  (the Plaintiff) let go of the stanchion she had been holding with her left hand as she proceeded to sit down in the collapsible seat and before she was seated.  (the Plaintiff) testified to her recollection that the bus accelerated from the bus stop causing her to lose her balance and to descend with some force.  The sacral-lumbar portion of her back struck the plastic armrest affixed to the left side of the collapsible seat.  A photograph of the injury taken later in the day indicates that the point of contact was directly on the sacral-lumbar area or the coccyx, and not to the left or right of the spine.”
The court dismissed the claim finding that “On the evidence that has been adduced, I conclude and find as a fact that the sole cause of the accident was (the Plaintiff’s) omission to take precautions to ensure her own safety on a moving bus.  She omitted to hold the stanchion that was readily available to her as she sat down.  I am not persuaded on a balance of probabilities that the bus was operated in any manner which could be classified as negligent.”
While this is by no means an exciting claim, Mr. Justice Pitfield did a great job in summarizing some of the authorities that deal with the duty of care owed by bus drivers to their passengers.  He recited the following well known principles when dealing with injured occupants on a bus:
Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger.  The care required is of a very high degree
…once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger.  The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances.  The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger.  The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.
 

ICBC Tort Claims and Net Wage Loss

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 108 Comments on ICBC Tort Claims and Net Wage Loss

If you have been injured in a BC motor vehicle accident and suffered a wage loss you may have had ICBC tell you that they can only pay you your ‘net wage loss’ in your tort claim.
I have often often seen ICBC calculate a person’s gross wage loss and deduct 25% to account for income taxes prior to paying the past wage loss.  Is this proper?  The answer is sometimes.  It depends on the amnount of your past wage loss award.
Great reasons for judgement were released today by Madam Justice Boyd of the BC Supreme Court.  In this case the court awarded $8,750.36 for past wage loss.  ICBC then tried to deduct income taxes on this amount prior to paying it.  Madame Justice Boyd summarized the applicable law very well and concluded that the leading BC Supreme Court dealing with this issue(Hudniuk v. Warkentin) applies, and using its principles
‘the Plaintiff’s net income loss should be calculated by deducting the necessary income tax from the agreed gross income loss of $8,750.36.  Further, as Hudniuk requires, for the purposes of tax calculations, this formula assumes that this amount is the only income earned by the Plaintiff in 2008.  Since the first day of trial was May 12, 2008, the tax rates in effect of the previous calendar year, as or December 31, 2007, are applicable‘
The court then noted that at the time personal income under $9,027 was exempt from taxation meaning the Plaintiff was entitled to the whole amount of past wage loss.
So, according to this judgement, if the past income loss you are entitled to in a BC ICBC tort claim is less than the personal income amount that is exempt from taxation you are entitled to the whole of your past wage loss.
I have heard through the grape-vine that the BC Court of Appeal will soon further clarify this area of the law, but until that time today’s case sets a great precedent for Plaintiff’s with less than $9,000 in past wage loss.
 

ICBC, No-Fault Benefits and 'Sickness and Disease'

Written by admin on . Posted in Uncategorized. 60 Comments on ICBC, No-Fault Benefits and 'Sickness and Disease'

Interesting reasons for judgement were released today concerning traumatic injuries and pre-existing degenerative disc disease.
The Plaintiff was a building siding installer.  He had a pre-existing degenerative lumbar spine condition which was largely asymptomatic, that is it caused occasional pain but did not disable him from work.  He was injured in a BC car accident on November 22, 2005.  He became totally disabled from his work after this collision.  He applied to ICBC, and received, Part 7 wage loss benefits.
ICBC obtained a report from Dr. Dommisse in June 2006.  He stated that ‘(the Plaintiff’s) complaints have been caused by this motor vehicle accident in part.  His pre-existing condition is likely contributing to his ongoing symptoms….His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time.’
As a result of this opinion ICBC cut off the Plaintiff’s wage loss benefits on August 31, 2006.  ICBC did so because they took the position that the Plaintiff’s ongoing disability was ‘caused directly or indirectly by sickness or disease.’
Can ICBC do that?  The answer is yes.  Section 96 of the Insurance Vehicle Regulation places some limits on benefits ICBC has to pay their insured including those ‘whose injury was caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part’
The Plaintiff sued ICBC asking the court to reinstate the Plaintiff’s no-fault wage loss benefits.   In support of the Plaintiff’s case, Dr. Hirsch, a Physical Medicine and Rehabilitation Specialist, gave evidence that 

Based on today’s obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident

(the Plaintiff) reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries.  He reported that for the past four months he has not noticed any further symptomatic gains.  Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.

At present and in the foreseeable future, I do not foresee that (the Plaintiff) will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.

Mr. Justice Meiklem of the BC Supreme Court dismissed the Plaintiff’s claim finding as follows:

[29]            In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of (the Plaintiff’s) continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date.  While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.

[30]            Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.

If you are in a dispute with ICBC regarding the payment of no-fault wage loss benefits it is important to canvass decisions such as this one addressing the potential consequences of pre-existing conditions on your ICBC insurance claim.  Ensure that your physicians carefully canvass the relationship between any ‘sickness or disease’ and traumatic injury when applying for ICBC no fault benefits.

More on ICBC, Rule 37B and Costs

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 59 Comments on More on ICBC, Rule 37B and Costs

I have previously blogged about the new Rule 37B (here and here) which deals with formal offers of settlement and the costs consequences of trial.
The first case that I’m aware of dealing with Rule 37B in an ICBC claim was released today.
In this case both fault and quantum were at issue.  The Plaintiff alleged that the Defendant was at fault for the car accident and claimed over $1million in damages.  The case was presented for over one week in front of a Vancouver jury.
The case was dismissed on the issue of liability meaning that the Jury found the Plaintiff was responsible for this collision thus making her entitlement to tort damages $0.
In this case ICBC (on the defendant’s behlaf) made a pre-trial offer to settle for $35,000.  This offer was made in compliance with Rule 37B.
The court refused to look at the fact that the Defendant was insured when considering ‘the relative financial circumstances of the Parties’ and concluded that the Defendant was entitled to Double Costs from the time the offer was made through trial.
I reproduce the court’s key analysis below:

a)         Ought the Defendants’ Offer to Have Been Accepted?

[20]            In her submissions, the plaintiff referred to the position that she said was taken by an unnamed ICBC adjuster respecting the responsibility for the collision.  That view was apparently a preliminary one, the basis for which is unexplained; it was not before the jury in this case, and, in any event, the conclusion would certainly not be binding on the jury or the court.

[21]            The plaintiff also referred in her submissions to the fact that she had offered to settle her claim for $160,000 plus her costs, a sum considerably less than her counsel sought from the jury.

[22]            Based upon her offer compared to the position taken by her counsel at trial, the plaintiff was clearly prepared to take a considerable gamble to achieve a significant award.  While it was open to the jury to make a sizeable award, in the event there was a finding of liability against the defendants, the discount the plaintiff was prepared to accept in order to settle the claim does not support the conclusion that she had confidence in the likelihood of securing a sizeable award at trial.  That, in my view, is one of the factors against which the reasonableness of her refusal to accept the defendants’ offer to settle must be assessed.

[23]            As I have said above, it was clearly open to the jury to dismiss the plaintiff’s claim by finding no liability against the defendants, but equally open to them to find some or even complete liability against the defendants.

[24]            While the defendants argued that the jury’s verdict proves that the plaintiff ought to have accepted their offer to settle, I do not read Rule 37B as inviting that sort of hindsight analysis.  Under Rule 37, an offer to settle was revoked once trial began.  Although Rule 37B contains no such provision, the defendants in this case stated in their offer that it was open for acceptance “at any time before 4:00 pm, Pacific Time, or the last business day prior to the commencement of the first day of trial”.  In my view, the reasonableness of the plaintiff’s decision not to accept the defendants’ offer to settle must be assessed, under that offer, only prior to the last date that the offer could be accepted, and in any case, under Rule 37B, prior to the delivery of the jury’s verdict, but not thereafter.

[25]            Weighing these factors, I am unable to say that it was unreasonable for the plaintiff to have rejected the defendants’ offer to settle.

b)         Relationship between the Offer and the Final Judgment

[26]            Implicit in the defendants’ position on costs is the argument that the complete dismissal of the plaintiff’s claim obviates a consideration of subrule 37B(6)(b).  I do not accept that that is an appropriate reading of that subrule.

[27]            With respect to this subrule, the plaintiff argues that the jury’s verdict was not one that ought to have been “seriously contemplated” by the plaintiff.  The difficulty with this position is that counsel for the plaintiff took no objection to the charge, which instructed the jury that it was open to them to dismiss the plaintiff’s claim if they were not satisfied that the plaintiff had established liability on the part of the defendant Priscilla C. Jang.  The jury’s verdict could not in these circumstances be said to be perverse, as counsel for the plaintiff argued before judgment was entered.

[28]            I do not accept the plaintiff’s submission that the jury’s verdict is difficult to accept on the evidence before it.

c)         Relative Financial Circumstances of the Parties

[29]            The plaintiff asserts by affidavit that her annual income is between $33,000 and $34,000 per year, and that her share of the expenses in the apartment she shares with a friend together with her own monthly expenses amount to approximately $2000 per month.

[30]            The plaintiff lists a debt to her lawyers of some $29,000 as well as other debts of a further $35,000, and swears that “If I am obliged to pay ICBC’s defence costs for this trial, I will be unable to meet my ongoing expenses and debts.”  I have no evidence of the extent to which the plaintiff could arrange financing to address her position, but I do not accept that her present debts or even greater financial obligations could not be accommodated by financing.  While the defendants argue that the plaintiff’s obligations to her counsel are a result of her refusal to accept their offer to settle, I do not see that the cause of the plaintiff’s debts is a relevant consideration.  The fact is that she is indebted to her counsel.

[31]            There are, however, two difficulties with the plaintiff’s position on this factor.  First, she argues that her financial circumstances are difficult.  This alone is insufficient to meet Rule 37B(6)(c).

[32]            Second, she places her financial position against that of ICBC, as opposed to that of the defendants.

[33]            While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]            The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[35]            There is no evidence before me as to the defendants’ financial circumstances.  What little I do know of the circumstances of the defendant Pricilla C. Jang is that, at the time of the accident, she was driving her mother’s motor vehicle, and that she was employed as a parts delivery person for a motor vehicle dealership.  That does not suggest to me that her financial circumstances are appreciably different from those of the plaintiff.

d)         Other Factors

[36]            No submissions were made by the plaintiff suggesting that there are other factors in this case that should influence the appropriate cost option to be employed in this case.

DISPOSITION

[37]            While I am not prepared to find that the plaintiff’s failure to accept the defendants’ offer to settle was unreasonable, I am equally unprepared to accept that the jury’s verdict was unreasonable.  I am also unprepared to conclude that there is any significant disparity in the financial circumstances of the parties so as to invoke subrule 37B(6)(c).

[38]            What then, of the function of the Rules to encourage or to deter the types of conduct referred to by Cumming J.A. in Skidmore?  As mentioned above, the plaintiff was prepared to take a considerable gamble to achieve a significant award.  Had she succeeded, she doubtless would have sought an order for double costs against the defendants following her offer to settle.

[39]            I conclude that the refusal of an award of double costs from August 11, 2008 would completely ignore the important deterrent function of the Rules.  The factors set out in subrule 37B(6) do not, in this case, persuade me that such a result would be appropriate.  I find that the defendants are entitled to an award of double costs beginning a reasonable period of time after which the plaintiff could consider their offer.  That period I find commenced on August 18, 2008, seven days after the defendants’ offer to settle.

[40]            The defendants are entitled to recover their taxable costs and disbursements of this action from its commencement until August 18, 2008 pursuant to Rule 57(9).  Those costs will be taxed at Scale B.

[41]            The defendants are entitled to double costs commencing August 18, 2008 and to their disbursements as incurred after August 18, 2008.  The disbursements will be allowed only in the amount incurred, and not at a double rate.