Court Entitled To Rely on Civil Jury Instructions For Present Value Calculations

When awarding damages for future losses BC Courts have an obligation to use appropriate present value multipliers in arriving at the lump sum awarded.  Normally this is achieved by relying on expert evidence in personal injury cases.  Given the BC Government’s recent restrictions on expert evidence Justices will likely have increasingly fewer such reports to assist them.
To this end an interesting footnote appeared at the end of a recent personal injury judgment.  In the recent case (MacGregor v. Bergen) the Plaintiff was injured in a 2013 collision.  The crash left the plaintiff with residual partial disability.  Damages were awarded for past and future losses.  The Court noted that no expert evidence was led by either party addressing preset value calculations but this was not a problem as the Court could simply rely on the multipliers provided in BC’s Civil Jury Instructions.  In explaining why this was appropriate Mr. Justice Branch provided the following thoughts in a footnote to his reasons for judgement:
Neither party provided expert testimony as to the appropriate present value multipliers. However, I find that I have an obligation to account for the present value of the future losses pursuant to s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Multipliers are calculated using the designated 1.5% for the present value of future income loss and 2% for any other future losses. The amounts presented for female police officers and female university graduates were determined by inflating the 2015 data provided by Mr. Turnbull to 2018 dollars (resulting in figures of $99,300 versus $67,700), calculating the difference of $31,600, and then applying a present value multiplier of 26.23, assuming a retirement age of 65 (37 years hence). I find that I am entitled to make use of the multipliers provided at Appendix E of the Civil Jury Instructions for this purpose. I note that the court has relied on the Civil Jury Instructions for this purpose in other cases where expert evidence was not made available: Smith v. Fremlin, 2013 BCSC 800 at para. 38; Erickson v. Bowie, 2007 BCSC 1465 at para. 51, footnote 3; Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 at para. 57; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; Duifhuis v. Bloom, 2013 BCSC 1180 at para. 62; Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 at para. 70.

Police Told They No Longer Need to Investigate Most Collisions in BC

When a collision occurs involving injury, death or a prescribed amount of property damage, attending police officers are required to complete a written report of the crash.   This can be a valuable resource for collision victims as it documents the parties involved, labels the probable offender for the crash, highlights contributing factors along with road conditions and also notes the names of known witnesses.  The ‘prescribed amount’ historically was $1,000 for motor vehicles, $600 for motorcycles $600 and $100 for bicycles.  This captured most collisions.
In a bit of a perplexing development the BC Government has changed this threshold to $10,000.  A press briefing released last week noted as follows:
“Having traffic back up because of a minor collision where nobody was hurt doesn’t help anyone – and worse, it can lead frustrated drivers to take steps that are unsafe,” said Mike Farnworth, Minister of Public Safety and Solicitor General. “Today’s increase in the damage threshold for these kinds of crashes is long overdue and will allow people and police officers to move damaged vehicles out of the way without delay.”
Currently, officers who attend a PDO must complete a written report before any vehicles can be removed from the road if damage exceeds $1,000 (for motorcycles, $600; for bicycles, $100). By increasing the reporting threshold to $10,000 per PDO, regardless of vehicle type, government expects that provincial highways will be able to be unblocked more efficiently.
The BC Government has recently labelled almost every injury sustained in a collision as “minor”.  They have now labelled all collisions causing under $10,000 in vehicle damage as “minor”.  Few people would consider a crash causing $9,000 in damages as anything but severe.  It makes little sense to crack down on speeding and distracted driving (activities which very well could cause collisions) but to ignore investigations when actual collisions occur.
This development takes an important tool away from collision victims who later need to advocate on their own behalf.  If you are a collision victim in BC it is now more important than ever to document matters that the police used to record following a crash.
 

BC Attorney General – ICBC Does Not Have A "Meat Chart"

Last month ICBC withdrew many settlement offers on open claims and replaced them with lower unrealistic offers which were not tied to judicially established legal principles but rather internally designated criteria.  The media dubbed this strategy the “meat chart” which appears to be resulting in fewer settlements and more claims now clogging the courts.  BC’s Attorney General, the man in charge of ICBC, has now come out and taken offence to the meat chart label and has outright denied its existence.
In a lengthy exchange with MLA Michael Lee BC’s Attorney General asked the opposition member to not call ICBC’s strategy a ‘meat chart‘ and said ‘they do not have a meat chart‘.  Here is the full exchange as recorded in Hansard:

M. Lee: Well, I appreciate that we’ve had a great opportunity to have those discussions, in this House, between the Attorney General and myself. That’s partly because, I think, of the complexity of the roles. I will just conclude by saying that, specifically, the concern is over the multiple roles that the Attorney General carries. One is the responsibility to be the chief legal officer for this province, advising the Premier and the cabinet. The role that he played during the referendum, for example, comes to mind.

The second, of course, in no particular order, is the minister responsible for ICBC. As these changes are coming forward, does the Attorney General look at these changes through the lens of cost containment, as the minister responsible for ICBC, or through the lens of being the chief legal officer to this province, ensuring that individuals’ rights are protected?

There is, of course, great concern in terms of the need for expert reports, the manner in which this meat chart policy that ICBC now has…. There was a report that the Attorney General brought out in early January or December. That was the litigation review, which showed no systemic concern. At least, that was the headline. But clearly there was a change by ICBC coming forward, in terms of how they managed their litigation process.

These are the topics that, I think, are quite concerning, in terms of the pattern right now, of the way this has been approached, in the face of the concerns from members of the legal community. I look forward to discussing that further with the Attorney General in estimates and at other opportunities. I do thank the Attorney General today and the members of the ministry staff for that opportunity to have this discussion.

Hon. D. Eby: I can’t let go unchallenged the member’s suggestion that ICBC has a “meat chart.” They do not have a meat chart. That is incorrect; the member knows it’s incorrect. He shouldn’t repeat it.

That’s the end of my closing statement. I thank the member for his questions on the supplementary estimates, and I thank my staff for assistance.

ICBC has not been faring well in Court since their new strategy kicked in.  I can appreciate politicians looking to distance themselves from it but to outright deny that a new policy has kicked in when assessing the claims of injured British Columbians is a turn for the bizarre. I will continue to report on judicial outcomes of recent cases as they come before the courts.

BC Attorney General Admits Court Rule Changes Brought Without Judicial Approval

Earlier this month BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions.  The rule changes were brought without notice to the profession, were retroactive and ultimately will lead to ICBC paying for countless expert reports already in existence that the new rule deems useless.
Today BC’s Attorney General candidly admitted that this rule change was brought unconventionally and without judicial approval.  Legal challenges are being readied against this rule which appears to have been brought for an improper purpose, namely not to fix a procedural problem but rather to save a single institutional litigant money.  In any event here are Attorney General Eby’s words confirming the judiciary did not approve this surprise rule change
 The rules committee did not recommend these changes and was not asked to approve these changes. These changes were a decision made by government.”
Changes to the BC Supreme Court Rules require statutory consultation with the Chief Justice of the Court.  It is unclear just how meaningful a consultation occurred but today’s press release makes it appear that the consultation may have been little more than window dressing.

Martial Arts Student Waiver Held Not To Extend to Injuries Sustained in a Tournament

Post originally published here on my other legal blog combatsportslaw.com 
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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.
In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy.  The Plaintiff participated in a tournament where he sustained injury.  He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.
As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“.  The Defendant argued that this waiver should be upheld and the lawsuit dismissed.  The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“.  Using this test the court found the waiver for injuries in classes could not extent to a tournament.  In reaching this conclusion Madam Justice Matthews provided the following reasons:

[24]         Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.

[25]         I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.

[26]         In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.

[27]         Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.

[28]         I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.

[29]         The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.

ICBC's "Meat Chart" Crashes In the BC Supreme Court

Update February 25, 2019 – The below paragraph 71 was edited in revised reasons for judgement published today and now reads as follows:
[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.
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Earlier this year ICBC instructed its staff to ignore the law when valuing cases and instead make offers based on an internal injury ‘meat chart’.  The result is cases not settling and going to trial.
The first wave of these has now hit the courts and the judiciary seems none too impressed by ICBC and their ‘institutional’ tactics.
In reasons for judgment released today (Tsai v. Murdoch) ICBC was harshly criticized.  The Plaintiff was injured and sought to settle her case.  ICBC declined and made a low settlement offer subject to their ‘meat chart’ guidelines. The plaintiff sensibly rejected the offer and went to trial where damages were assessed under the law and resulted in an award greater than what she was prepared to settle for.
The Court went on to award the plaintiff double costs for ICBC’s tactics and criticized their new approach.  In doing so Madam Justice Sharma provided the following reasons:
[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. I was informed the defendant had made a settlement offer, but withdrew it for “institutional” reasons. Whatever “institutional” reasons are they do not protect in any way a litigant from bearing the consequences of its choices in the litigation.  Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.

What Dumpster Fire? ICBC Spokesman Says Corporation in Fine Financial Shape

Remember the Dumpster Fire?  The powerful image painted by BC’s Attorney General used to persuade the public that it is necessary for the government to strip the rights of British Columbians in order to keep ICBC healthy?  Turns out ICBC themselves say they are in fine financial shape and can meet all of their existing obligations without concern.
ICBC has Billions in assets.  Billions.  In addition to this, according to ICBC Spokesman Adam Grossman, ICBC is cash solvent and collects enough in premiums and investment income to meet their obligations.
The following quote was attributed to Grossman by the Vancouver Sun’s Rob Shaw:
““We disagree with Mr. McCandless’ position — ICBC is not insolvent….In addition to the reserves and portfolio referenced above, we are still generating sufficient cash flows from premium revenue and investment income, allowing us to meet our current obligations — this is the key point and we are not, therefore, being backstopped by government.
Government has implemented a host of legal changes stripping the rights of British Columbians to douse the so-called dumpster fire.  ICBC has not realized any savings yet from these changes as they largely have not kicked in yet.  If ICBC can meet all current obligations why the “minor” injury caps?  Why the discrimination to people suffering psychological disability?  Why the forced tribunal and stripped judicial rights?  Why the limit on expert witnesses plaintiffs can use when appearing in court? If there was no dumpster fire to put out it looks like British Columbians just got hosed.
 

BC Caps Expert Reports in Motor Vehicle Litigation

Update – The full text of the amended rules have been published.  These read as follows –
RULE 11-8 – EXPERTS IN VEHICLE ACTIONS
Definition
(1) In this rule, “vehicle action” means an action that includes a claim for damages for
personal injury, or death, that arises out of the use or operation of a vehicle as defined
in the Motor Vehicle Act.
Conflict
(2) This rule applies in the event of a conflict between this rule and another rule of these
Supreme Court Civil Rules, other than Rule 15-1.
Limitation on expert opinion evidence
(3) Except as provided under this rule, a party to a vehicle action may tender, at trial, only
the following as expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) expert opinion evidence of up to 3 experts;
(b) one report from each expert referred to in paragraph (a).
Additional experts and reports by consent
(4) If all the parties to a vehicle action consent,
(a) the parties may tender expert opinion evidence of one or more additional
joint experts, appointed in accordance with Rule 11-3, in excess of the limit
set out in subrule (3) (a), or
(b) a party may tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
page 3 of 5
Additional experts and reports by application
(5) On application by a party to a vehicle action, the court may do any of the following if
the court is satisfied that it would further the object of these Supreme Court Civil
Rules:
(a) provide for expert opinion evidence of one or more additional experts, in
excess of the limit set out in subrule (3) (a), by
(i) ordering the parties to appoint a joint expert in accordance with Rule
11-3, or
(ii) appointing an expert under Rule 11-5;
(b) allow the party to tender as evidence one or more additional reports from an
expert referred to in subrule (3) (a), in excess of the limit set out in
subrule (3) (b).
Allowable responding reports
(6) The limits set out in subrule (3) do not apply to an expert or expert’s report, if a party
serves the expert’s report under Rule 11-6 (4) to respond to a report that was served
on the party within 126 days before the scheduled trial date.
Allowable supplementary reports
(7) The limit set out in subrule (3) (b) does not apply to a supplementary report required
under Rule 11-6 (5) or (6).
Limitation on disbursements for expert evidence
(8) In a vehicle action, only the following amounts may be allowed or awarded to a party
as disbursements for expert opinion evidence on the issue of damages arising from
personal injury or death:
(a) the amount incurred by the party for up to 3 expert reports, whether or not
the reports were tendered at trial, provided that each report was
(i) served in accordance with these Supreme Court Civil Rules, and
(ii) prepared by a different expert;
(b) the amount incurred by the party for
(i) a report allowed under subrule (4) or (5),
(ii) a report referred to in subrule (6) or (7), or
(iii) a report prepared by an expert appointed by the court under
Rule 11-5 (1);
(c) the amount incurred by the party for an expert to give testimony at trial in
relation to a report, referred to in paragraph (a) or (b), that was prepared by
the expert.
page 4 of 5
Appointment of experts on initiative of the court
(9) Nothing in this rule prevents the court from appointing an expert on its own initiative
under Rule 11-5 (1).
Transition – application of rule
(10) Subject to subrule (11), this rule applies to all vehicle actions, whether or not a notice
of claim for the vehicle action was filed before the coming into force of this rule.
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of
claim was filed before the coming into force of this subrule:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before the
coming into force of this subrule;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before the
coming into force of this subrule.
5 Rule 15-1 is amended by adding the following subrule:
Application of Rule 11-8
(12.1) In a fast track action,
(a) Rule 11-8 (3) (a) is to be read as if the reference to “3 experts” were a
reference to “one expert”, and
(b) Rule 11-8 (8) (a) is to be read as follows:
(a) the amount incurred by the party for one expert report, whether or not
the report was tendered at trial, provided that the report was served in
accordance with these Supreme Court Civil Rules; .
SCHEDULE 2
1 Rule 9-7 (7.1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is amended by
striking out “in relation to a vehicle action referred to in that rule”.
2 The heading to Rule 11-8 is repealed and the following substituted:
RULE 11-8 – EXPERT OPINION EVIDENCE ON DAMAGES FOR PERSONAL
INJURY OR DEATH .
3 Rule 11-8 (3) is amended by striking out “to a vehicle action” and substituting “in an
action”.
4 Rule 11-8 (4) is amended by striking out “to a vehicle action”.
5 Rule 11-8 (5) is amended by striking out “to a vehicle action”.
page 5 of 5
6 Rule 11-8 (8) is amended by striking out “In a vehicle action” and substituting “In an
action”.
7 Rule 11-8 (10) is repealed and the following substituted:
Transition – application of rule
(10) Subject to subrules (11) and (12), this rule applies to all actions, whether or not a
notice of claim for the action was filed before the coming into force of this rule.
8 Rule 11-8 is amended by adding the following subrule:
Transition – exceptions for existing actions, other than vehicle actions
(12) The following exceptions apply in relation to an action, other than a vehicle action, for
which a notice of claim was filed before February 1, 2020:
(a) the limits set out in subrule (3) do not apply to any report of an expert that
was served in accordance with these Supreme Court Civil Rules before
February 1, 2020;
(b) the limits set out in subrule (8) do not apply to amounts that were
necessarily or properly incurred for expert opinion evidence before
February 1, 2020.
_______________________________________
Today BC’s Attorney General announced changes to the BC Supreme Court Rules which will limit how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision.
While the exact wording of the changes is not yet known the BC Government provided the following details in a press release this morning:
The proposed amendments will limit the number of experts and expert reports permitted to address the issue of damages, such as wage loss, future wage loss and future care that can be used by each side of a motor vehicle dispute. Parties will be able to use one expert and report for fast-track claims (e.g., less than $100,000), and up to three experts and reports for all other claims. However, the judiciary will be able to permit additional court-appointed or joint experts at its discretion.
These amendments will come into effect immediately upon deposit for motor vehicle-related actions. They will also apply to all personal injury claims as of Feb. 1, 2020, subject to the further analysis and consultation that the ministry plans to undertake. More information will be available in the coming weeks.
I will update this article with the actual rule changes once these are published.
While the limits on experts apply equally to both sides it is worth noting that if a plaintiff fails to call treating physicians ICBC can ask the court to draw an ‘adverse inference‘.  Plaintiff’s rarely enjoy this luxury unless ICBC hires an expert and then chooses not to disclose the report generated from the assessment.  Plaintiffs will be faced with the difficult choice of deciding whether to come to court with treating doctors (who often want nothing to do with litigation) vs doctors retained for medic0-legal purposes.  Defendants will not have to struggle with such a choice.

ICBC's Secret "Meat Chart" for Pain and Suffering and the Actual Law

As reported last week by the Vancouver Sun, ICBC’s top brass have handed out directives to adjusters to withdraw settlement offers on existing claims and re-assess claims not by the law but by internal criteria the media have dubbed the ‘meat chart’.
Details of these instructions are slowly coming to light and it appears ICBC has created 5 different categories for non-pecuniary damage assessment.  The first three deal with soft tissue injuries, the fourth with more serious injuries and the last with what ICBC deems to be catastrophic injuries.
I have not yet had the privilege of seeing ICBC’s full memo to their adjusters but sources tell me that ICBC will be valuing pain and suffering by completely artificial criteria which run contrary to well established law.  If and when full details of ICBC’s new policy are shared with me I will gladly publish them.
In the meantime, if you are being told that your claim is worth an artificially small amount based on ICBC’s internal assessment please know your rights.  It is well established that non-pecuniary damages are assessed individually on a case by case basis using the following non-exhaustive list of factors.  If ICBC is not prepared to use these you can be confident BC courts will –

a)     age of the plaintiff;

b)     nature of the injury;

c)     severity and duration of pain;

d)     disability;

e)     emotional suffering; and

f)       loss or impairment of life;

g)     impairment of family, marital and social relationships;

h)     impairment of physical and mental abilities;

i)       loss of lifestyle; and

j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

"Standard of Perfection" Not Needed for Victims of Hit and Run Collisions

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identify of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act.
In today’s case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact.  The Plaintiff’s wife was in a separate vehicle nearby but did not notice the collision.  The Plaintiff drove away from the scene and did not find any other witnesses.  The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act.
ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist.  Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances.  In addressing the required standard for victims of hit and run collisions the Court noted as follows:

[62]         Overall, I find the plaintiff acted reasonably at the time of the Collision and its immediate aftermath, but was unable to obtain the required information. The driver of the SUV immediately fled the scene. The lead vehicle left quickly as well. There were no other potential witnesses in the area of the Collision, other than perhaps Mr. Ghuman’s wife, but she was unaware the Collision even occurred. In these circumstances, I think a reasonable person would believe this low-impact accident was not so obvious that others in the area would have even seen it, let alone observed details of the offending vehicle in the seconds before it fled the area.

[63]         However, as the case authorities make clear, the requirement to make all reasonable efforts to ascertain the identity of the other driver and owner is not limited to the immediate aftermath of the Collision. Mr. Ghuman must be found to have also made all reasonable efforts to ascertain the identity of the unknown driver and owner in the days and weeks that followed.

[64]         In those days and weeks, Mr. Ghuman took several steps to try and ascertain the identity of the SUV, its driver or owner.

[65]         He called police the following day and gave them all of the information he had. He also reported the Collision to ICBC the following day and followed up with the written claim form a few days later.

[66]         Within a week of the Collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the Collision occurred. He retained counsel shortly thereafter to protect his interests and within about a month of the Collision, his counsel arranged for more signs seeking witnesses to be posted around the intersection and for an advertisement seeking witnesses to run for a week in the local newspaper.

[67]         None of the above efforts generated any witnesses to the Collision or any information that might have led to the identity of the SUV, its driver and owner.

[68]         ICBC identifies two steps that Mr. Ghuman did not take in the days and weeks following the Collision as a basis for finding that Mr. Ghuman did not make all reasonable efforts. It points to Mr. Ghuman’s failure to follow up with police and his failure to canvass business in the Strawberry Hill complex for potential video recordings or records of witnesses who may have come forward to those businesses.

[69]         I agree with the observations of Justice DeWitt-Van Oosten in Rieveley that there are often other steps that a plaintiff could have taken in particular circumstances, but that s. 24(5) of the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a “plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time”: Rieveley at paras. 36-37.

[70]         Mr. Ghuman did not follow up with police following his initial call because he reasonably believed police would not investigate the Collision and/or that any investigation would be fruitless. Mr. Ghuman reported the Collision to police because he understood that the law obliged him to, but given the circumstances of the Collision and the presence of only very generic information about the SUV, Mr. Ghuman’s belief that police would not investigate or such an investigation would be fruitless is reasonable. I accept there was little benefit in following up with the Surrey RCMP in these circumstances. To do so would be highly unlikely to produce any results.

[71]         Mr. Ghuman did not check with businesses near the area for video surveillance and/or records of witnesses who may have come forward because he relied on another person, his wife, who told him that she was making some of those efforts. Not admissible for the truth that those steps were actually taken, Mr. Ghuman’s belief that some of those steps were being done does provide a reasonable explanation why he did not undertake them himself.

[72]         I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

[73]         In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

[74]         For all of these reasons, I find the plaintiff has met the onus upon him to establish that he made all reasonable efforts to ascertain the identity of the SUV’s owner and driver under s. 24(5) of the Act and that the identity of the unknown owner and driver of the SUV is not ascertainable. Accordingly, ICBC is appropriately named as the nominal defendant to this action and liability is found against ICBC.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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