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Indivisible Injury Principle Applied Where Injuries Aggravated in Limitation Barred Event

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Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.
In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions.  The first in 2011.  She sued the at fault motorist who admitted liability.  She was involved in a second collision in 2014.  She was a passenger in her husband’s vehicle.  He was at fault for the second crash but she chose not to sue and the limitation period to do so expired.  The second crash aggravated the injuries from the first.
The Defendant argued that the Plaintiff’s damages must be reduced to the extent that the second crash aggravated them.  The Court disagreed noting the principle of indivisible injury allows the Plaintiff to fully recover damages from the first Defendant who is then burdened to seek indemnification from other contributing tortfeasors.  In applying the indivisible injury principle in the Plaintiff’s favour Mr. Justice Bracken provided the following reasons:

[117]     In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident.  She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.

[118]     In Bradley v. Groves, 2010 BCCA 361 at paras. 32 – 34, the court said:

[32]      There can be no question that Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]      The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]      That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[119]     In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident.  He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible.  The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act.  Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.

[120]     At para.60, Burnyeat J. stated:

[60]      I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[121]     In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.

[122]     I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu.  There was no right of action in British Columbia against the person liable for the second accident.  In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.

[123]     In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

[124]     It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband.  That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff. 

[125]     The plaintiff obviously knew of her right to commence an action from the time of the accident.  The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident.  I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.

Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.
In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff.  The Defendant was uninsured at the time and represented himself in court.  As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason.  On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant.  The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[47]         This turn of events significantly undermined the reliability of the defendant’s evidence.

…

[84]         … the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

…

$85,000 For Chronic Myofascial Pain From Three Collisions

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Dhillon v. Singer) the Plaintiff was involved in three collisions which the Defendants admitted  fault for or were found liable.  The collisions resulted in chronic myofascial pain with a poor prognosis for further improvement.  In assessing non-pecuniary damages at $85,000 Madam Justice Fleming provided the following reasons:

[134]     Regarding the plaintiff’s physical injuries and symptoms my analysis and findings are as follows:

·       After the first accident, Mrs. Dhillon experienced fairly intense pain arising from soft tissue injuries to her neck, upper back and right shoulder that interfered with her sleep, as well as headaches. Prior to returning to work, her pain symptoms had reduced significantly but they were not fully resolved. The plaintiff certainly felt well enough to work full-time. I accept that after she returned to work as a parking lot attendant, pain symptoms in her neck and her shoulder sometimes worsened causing her sleep difficulties.

·       I find the plaintiff continued to experience some pain in her shoulder and neck prior to the second accident although her symptoms were not as intense or constant as she described, and were likely mild. Mrs. Dhillon testified that despite telling her doctor she was still in significant pain in January 2012, he provided her with a medical note to submit along with her application to the pharmacy assistant program confirming she was in good physical and mental health. I am not persuaded the doctor would have written such a note if the plaintiff was at that time complaining of significant ongoing pain symptoms. I also put limited weight on the gap in his clinical records from May 20, 2011 to March 2, 2012 which demonstrate the plaintiff otherwise attended appointments regularly in relation to the accidents. I consider the gap, bearing in mind the decision of Justice N. Smith in Edmondson v. Payer, 2011 BCSC 118, aff’d 2012 BCCA 114, regarding the admissibility and use of clinical records. At paras. 36 and 37 he concluded the absence of any record cannot be the sole basis for an inference about whether an injury or symptom existed or not.

·       I find the second accident likely reinjured the soft tissues in the plaintiff’s neck and upper back as well as the other shoulder area, worsening and broadening her pain symptoms to some extent.

·       I accept the plaintiff experienced some increased pain and discomfort while studying for prolonged periods, particularly after the second accident, given the posture required. This may have affected her ability to concentrate to some extent. Her timely, very successful completion of the pharmacy assistant program satisfies me, however, that both before and after the second accident, those symptoms were not meaningfully disabling. I do not accept her evidence that she was required to study twice as much to achieve such high grades.

·       I find that by September 2012 the plaintiff’s pain symptoms were mostly mild, not modest as she testified.

·       I accept the plaintiff suffered from a flare up in her pain symptoms, accompanied by fatigue and some psychological symptoms in May 2013 which lasted for at least two weeks. The date on a medical note prepared by her family doctor corroborates her evidence regarding the timing of the flare up. Employment records confirm she worked less for a two week period during that month.

·       Following the third accident, I find the plaintiff experienced a significant increase in the level and scope of her pain caused by new soft tissue injuries that extended to her low back and an aggravation of previous soft tissue injuries in her shoulders, upper back and neck, along with worsened headaches. I also find that as a result of the third accident and her increased pain symptoms, previously transient psychological and cognitive symptoms including feelings of sadness or depression, irritability, anxiety, low energy and difficulties with concentration intensified markedly, particularly after she returned to work in November 2013. Although her pain symptoms had lessened considerably by then, I accept they worsened during the course of the work day, disrupting her sleep. I have no doubt the plaintiff was discouraged by the experience of working with ongoing pain and fatigue, particularly given the demands of her job as a pharmacy assistant, namely the need for accuracy. Although, I accept the plaintiff worked as much as she could, I do not accept that her pain symptoms were severe. Severe pain is inconsistent with her evidence that she worked 32 to 34 hours per week. In fact she worked more than that, except for the months in 2016 leading up to trial in August. Her employment records for 2014 indicate she rarely worked less than 35 hours per week and most often between 35 and 39 hours, not 32 to 34. I infer from the amount she actually worked that her symptoms were not as intense or as disabling as she suggested.

·       I accept the plaintiff’s testimony that she attended the emergency department and received an injection in June 2014 because of increased pain, but conclude the flare up was relatively brief given her hours of work were reduced for a two-week period only. She attended the Change Pain Clinic in the fall of 2014 and declined the proposed injection series because she had less pain by then. I find her pain symptoms at that point were mostly mild and sometimes moderate. At the same time her psychological symptoms had subsided due to Pristiq allowing the plaintiff to cope more effectively.

·       By 2015 or early 2016, the plaintiff’s sleep was less disrupted and she was no longer taking over the counter pain medication as frequently, indicating her pain symptoms had become intermittent although ongoing.

…

[143]     After each of the three accidents, the first and third in particular, Mrs. Dhillon endured significant pain symptoms and headaches. Following the first and third accidents, her pain symptoms were severe enough to prevent her from working at all for some months. Her sleep was very disrupted. Since her return to work in November 2013, Mrs. Dhillon has continued to experience variable levels of pain in her neck, shoulders, upper and lower back and psychological and cognitive symptoms, all of which have improved and are likely intermittent, but now chronic. Ongoing pain has affected Mrs. Dhillon’s intimate relationship with her husband. She has also been somewhat less able to play badminton with her children and she avoids more elaborate cooking, something she loved to do before the accidents. Mrs. Dhillon has and will continue to experience some pain while working although not to the extent she claims. Mrs. Dhillon’s mood symptoms are reasonably well managed, although she continues to have low moments and feelings of anxiety in response to pain and fatigue. On the whole, however, the plaintiff is able to enjoy her family and everyday life and take pride in her work.

[144]     Applying the factors identified in Stapley to the facts of this case and bearing in mind my review of the authorities provided by the parties, I conclude an award of $85,000 is fair and reasonable.

Pub Found Partly At Fault for Crash Caused by "Visibly Intoxicated" Patron

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a Pub jointly and severally liable for a collision by a patron who was served alcohol to the point of visible intoxication.
In today’s case (Widdows v. Rockwell) the Defendant drove a vehicle and collided with the Plaintiff pedestrian.  The crash caused severe injuries, including brain damage.
At the time the Defendant was “quite literally, falling-down drunk.“.
Prior to the crash the Defendant was drinking at a local pub. In finding the pub jointly and severally liable for over serving a patron and failing to take reasonable steps to ensure he was not driving Mr. Justice Kent provided the following reasons:

[58]         Insofar as Rockwell’s consumption is concerned, I do not accept his evidence that he only consumed 2 1/2 beers at the pub.  Rather, I find as a fact that each of the co-workers bought at least one round of drinks for the other members of the group (and possibly more) and that Rockwell himself bought at least two rounds that included beer (for himself and Sauve), vodka (for Sahanovitch) and Fireball whiskey shooters (for all).  I find as a fact that by the time he left the pub to retrieve his truck, Rockwell had consumed at least five to six drinks, a combination of beer and liquor, and that he was significantly intoxicated by alcohol.  I also have no doubt, and I find as a fact, that the influence of alcohol on Rockwell was exacerbated by both a lack of food in the preceding 12 to 15 hours (and probably longer), and a high level of fatigue caused by extremely long work hours and inadequate sleep over an extended period of time.  His ability to drive safely was significantly impaired when he left the pub.

[59]         I recognize another possible theory of Rockwell’s intoxication is that he drank only two to three beers at the pub and in the two-hour period thereafter, he consumed substantial quantities of beer and/or liquor, whether at home or elsewhere, before the accident occurred.  While it certainly appears that Sahanovitch was an aggressive and irresponsible drinker of a sort who might engage in such behaviour, there is no evidence to support such a characterization of Rockwell.  When one subtracts the amount of time that it would have taken for Rockwell to drive home, this theory would require him to have consumed an enormous amount of alcohol in less than an hour, a proposition which is not consistent with his previous conduct and which, assessed from the perspective of robust logic and common sense, amounts to nothing more than wishful thinking and unfounded speculation on the part of Cambie Malone’s.

[60]         I am also satisfied however, and find as a fact, that Rockwell did indeed consume further alcohol after he departed the pub.  On the balance of probabilities, I find that this occurred at his residence and included consumption of vodka or other liquor in quantities more than Rockwell claims in his evidence.

[61]         It is not necessary to ascribe a precise figure to the amount of alcohol that Rockwell consumed after he left the pub.  It is sufficient to find that he was significantly intoxicated when he left the pub and that he became even more severely intoxicated through the consumption of additional alcohol before the accident happened…

[73]         In this particular case the affidavits from the pub employees all referred to the employees having successfully completed the “Serving It Right”, which is British Columbia’s mandatory “Responsible Beverage Service Program”.  This is a program sponsored by the provincial government and the hospitality industry which offers information about intoxication, as well as guidelines and suggestions for, as the tagline suggests, “responsible beverage service”.  Rather cleverly, none of the employee affidavits expressly disclosed the information and conduct guidelines suggested in the “Serving It Right” program.  Instead, all that was proffered was what was said to be Cambie Malone’s written “Policies and Procedures” which included the following paragraph:

It is your responsibility to ensure patrons do not become intoxicated while in the establishment.  You must refuse entrance and/or service to any person who is apparently under the influence of alcohol or drugs.  Moreover, persons visibly under the influence of drugs or alcohol may not be permitted to remain in the establishment.  You must refuse the person service, have the person removed and see that they depart safely.  Intoxicated persons must NOT be permitted to drive.  It is your duty to ensure that a safe ride home is used.  This is a crucial responsibility of everyone in the alcohol service industry.

[74]         While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

·       ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;

·       ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;

·       ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);

·       inquire if the patron is driving and identify any “designated driver” for groups of patrons;

·       know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;

·       display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;

·       ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;

·       display posters advertising free ride-home services available in the neighbourhood; and

·       if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.

[75]         None of these things occurred in the present case.  Rather, the pub’s employees utterly failed in abiding by their own employer’s directive that “intoxicated persons (e.g., Rockwell) must not be permitted to drive”.  I have no hesitation in concluding that the employees, and therefore Cambie Malone’s, did not meet the requisite standard of care in the circumstances of this particular case and that their conduct was accordingly negligent.

$217,500 in Damages Ordered Following Suckerpunch Assault

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Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering the payment of $217,500 in total damages after the Plaintiff was injured in an assault/battery.
In today’s case (Rycroft v. Rego) the Plaintiff alleged he was injured in an altercation with the Defendant.  Although the Court heard differing versions of events the Court concluded the Defendant through an “unexpected” punch to the Plaintiff which began a brief physical scuffle.
In finding the Defendant culpable for the assault and the injuries that arose Mr. Justice Williams made the following findings of fact:

[30]         Based on my examination of all of the evidence, my conclusions with respect to what occurred are as follows.

[31]         In order to investigate the reported damage caused to the bike park, shortly after returning home, the plaintiff entered the yard behind his residence. Immediately before the altercation, while Mr. Rycroft was walking at a moderate pace in the general direction of his own home, Mr. Rego, walking quite briskly, approached him.

[32]         I accept that the plaintiff said words to the effect of “you must be the dad; I do not want kids playing there anymore.”

[33]         I find that, at that point, the defendant struck the side of the plaintiff’s head. The version of events which most sensibly and logically explains the resulting bruise is that, when he was struck, Mr. Rycroft had his head turned to the right. The punch was of significant force and unexpected.

[34]         As a consequence of the blow, the plaintiff went down in a forward direction, ending up on his knees. He had his hands on the ground. The defendant immediately applied some type of headlock to Mr. Rycroft from behind.

[35]         The two men struggled, with Mr. Rego behind and above Mr. Rycroft. No significant blows were landed.

[36]         The physical engagement ended fairly quickly. The defendant let go of the plaintiff and moved away, and the plaintiff got to his feet.

[37]         The defendant said something to the effect of “do you want round two?” or “do you want some more?” The plaintiff responded in the affirmative, I expect probably more reflexively than seriously, but did nothing physically to further engage with the defendant. Instead, the plaintiff reached into his pocket, took out his phone, and called 911.

[38]         At that point, the defendant and his wife left and went home.

[39]         In the course of the altercation, the plaintiff sustained an injury to his left temple area, an injury which is depicted in the photo marked Exhibit 6. I find that bruise was caused by a blow from the defendant.

[40]         It is also reasonable to conclude that Mr. Rycroft sustained minor injuries to his arm, his elbow area, and his hand, likely from going to the ground.

[41]         Finally, I accept that the plaintiff incurred some injury to his knees, also resulting from going to the ground.

Limitation Period Not Postponed Where "Injuries Prove to be More Severe Than Initially Believed"

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Today the BC Court of Appeal published reasons for judgement upholding the dismissal of a medical malpractice claim that was brought out of time.
In today’s case (Bell v. Wigmore) the Defendant “ performed a syringing procedure, irrigating and flushing” the Plaintiff’s ear.  The Plaintiff alleged this was done negligently and as a result the Plaintiff went on to suffer from long term dysfunction.   The Plaintiff started the lawsuit almost 6 years after the incident when the applicable limitation period was two years.
The case was dismissed at trial and the Plaintiff appealed arguing the limitation period should have been postponed because in the initial period “he had every reason to believe that his injuries were transient and relatively minor”.
The BC Court of Appeal dismissed the appeal finding there was no good reason to postpone the running of the limitation period.  In reaching this conclusion the Court provided the following legal summary:

23]        The mere fact that injuries prove to be more severe than initially believed will not serve to postpone the running of the limitation period: Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Craig v. Insurance Corporation of British Columbia, 2005 BCCA 275. On the other hand, where it can be shown that the injuries were not, initially, sufficiently serious that a reasonable person would seek advice concerning a lawsuit, the running of the limitation period may be postponed to a time when the seriousness of the injuries became evident.

[24]        In Brooks v. Jackson, the plaintiff experienced a hemorrhage following the birth of her child. She was advised that “she should expect to be unwell for approximately two years, the length of time it would take to get her blood back and recover from the delivery.” Some four years later, she was diagnosed with Sheehan’s Syndrome, and soon after determined that the syndrome could have been brought on by the hemorrhage.

[25]        This Court found that the limitation period did not start to run until the plaintiff was diagnosed with Sheehan’s Syndrome:

[32]        In my opinion, a reasonable person in the position of Ms. Brooks would not have sought legal advice or further medical advice prior to the diagnosis of Sheehan’s Syndrome. She was advised in January 1998 she had no physical sequela from the delivery and she was satisfied with the answers Dr. Jackson gave to her questions. A reasonable person, in those circumstances, would not seek legal advice to determine whether there was a cause of action against Dr. Jackson. Ms. Brooks had no reason to believe that the temporary loss of blood had caused a permanent injury of a qualitatively different nature. It is my view that a reasonable person would not have sought legal advice until realizing the damage was more than transient in nature. Accordingly, the running of time in the limitation period was postponed until Ms. Brooks was diagnosed with Sheehan’s Syndrome, and the limitation period had not expired prior to the commencement of the action.

[26]        Brooks does not stand for the proposition that the running of a limitation period is postponed whenever a plaintiff has reason to believe that a condition will eventually subside. The question of whether a reasonable person would seek further advice turns on a number of factors. A court must consider the apparent severity of the injury and the duration and magnitude of its impact on the plaintiff’s lifestyle. A court will also consider whether, in the circumstances of the case, the plaintiff had good reason to suspect that someone was at fault in causing their injuries.

[27]        In Brooks, legal and medical advice, if taken early on, might have led the plaintiff to understand that she had a reasonable cause of action. It would not, however, have been reasonable for her to take such advice, as she was unaware that she had suffered serious harm, and had little reason to suspect that the harm she had suffered was a result of negligence.

Lack of Timely Notice Derails ICBC Unidentified Motorist Lawsuit

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a wrongful death allegation seeking damages from ICBC on behalf of an unidentified motorist.
In today’s case (Parmar Estate v. British Columbia) the Plaintiff estate sued numerous defendants alleging they were at fault for a fatal collision.  ICBC was named as a nominal defendant on the allegation that an unidentified motorist was responsible for the collision.  ICBC succeeded in having the claim against them dismissed for failure of the Plaintiff giving them notice of the allegation within 6 months of the collision.  In dismissing the claim against ICBC Madam Justice Gropper provided the following reasons:

[15]         I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.

[16]         Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.

[17]         The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.

[18]         I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.

Lost Trial Date Due To Lack of Trial Briefs Not Saved By Late Filing

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

Reasons for judgement were released today demonstrating that filing a late trial brief is no remedy once a trial date is lost due to lack of compliance with the Rules of Court.
In today’s case (Carleton v. North Island Brewing Corporation) the parties were scheduled for trial and apparently by consent agreed to file trial briefs “outside the times prescribed by the Rules.“.
The Court did not grant the request for lack of sufficient evidence supporting it and struck the trial date.  The parties hoped late briefs would salvage the trial date but the Court declined.  In doing so Mr. Justice Smith provided the following reasons:

[2]            Rule 12-2(1) requires a trial management conference to be held at least 28 days before trial. The plaintiff must file a trial brief at least 28 days before the date of the trial management conference (R. 12-2(2)) and other parties must file their trial briefs at least 21 days before the trial management conference (R. 12-2(3.1)). If no trial briefs are filed as required, the matter is removed from the trial list (Rule 12-2 (3.3).

[3]            These Rules are intended in part to assist the court in determining what cases are ready for trial, which in turn assists the court in the allocation of scarce judicial resources. They are not Rules that counsel and parties may opt out of at their convenience. At the very least, any application to extend the time for filing of a trial brief must be accompanied by a reasonable explanation as to why it was not filed in time as well as a proposed new date by which it will be filed.

[4]            In this case, neither party filed a trial brief and counsel simply submitted a draft consent order that “trial briefs of the plaintiff and defendant be filed outside the times prescribed” by the Rules. There was no explanation of why no one had filed a trial brief and no suggestion of when briefs would be filed. The absence of that material was in itself sufficient grounds to deny the application, but a subsequent review of the court record indicated that the matter had already been struck from the trial list.

[5]            The trial management conference had been set for February 16, 2017 and the requisition seeking a consent order for late filing was not submitted until January 30. In other words, the parties were seeking to file trial briefs after the date on which the Rules required the case to be struck from the trial list.

[6]            Rule 12-2 (3.3) reads

(3.3) Unless the court otherwise orders, a trial must be removed from the trial list if no trial brief has been filed under subrule (3) or (3.1).

[7]            Therefore, where a matter is struck from the trial list pursuant to that Rule, it cannot be restored simply by late filing of trial briefs, even if the court permits late filing. At least one party must make a proper application to restore the trial to the list. The question of late filing of trial briefs will only become relevant if that application is successful. Whether such an application is successful will depend on the circumstances, but I expect that in most cases applicants will be required to show both a reasonable excuse for the failure to file trial briefs and some serious prejudice if the trial does not go ahead.

Why Tostitos "Breathalyzer" Chip Bag Will Likely Get Them Sued

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(Image via adweek)
The Super Bowl is right around the corner and like many other company’s Tostitos is hoping to cash in.
Their angle?  A chip bag that doubles as a breathalyzer.  As reported by Time,
“The limited-edition “Party Safe” bag is meant to discourage drinking and driving, and will even provide those with a trace of alcohol on their breath with a $10 Uber code on the day of the big game. The company promises it comes equipped with an alcohol sensor that, when breathed into, will turn red if alcohol is detected and green if it’s not.”
Let me break down, as simply as possible, as to why a lawsuit is all but assured

  • They have created a gimmick intended to sell product
  • the gimmick is targeted to those who have been drinking and are considering driving
  • The gimmick will give a literal ‘green light’ to drive
  • The chip bag technology, I assume, will not be foolproof
  • A drunk will drive relying on the bag
  • Some misfortune will, in all likelihood, arise

This is a terrible idea.  To quote the the Lawrence Police on Twitter
Lawrence Police on Twitter

$70,000 Non-Pecuniary Assessment for "Permanent Worsening" of a Chronic Pain Condition

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for the worsening of a pre-existing chronic pain condition.
In the recent case (Deol v. Sheikh) the Plaintiff was involved in a 2012 rear-end collision that the Defendant was found responsible for.  Prior to this the Plaintiff was involved in a 2006 collision which left her with chronic pain symptoms.  The Court found the latter collision permanently worsened these symptoms and assessed non-pecuniary damages at $70,000.  In reaching this assessment Madam Justice Griffin provided the following reasons:

[154]     Here, the Plaintiff suffered from soft tissue injuries and chronic pain as a result of the 2006 Accident; she also suffered from soft tissue injuries and an exacerbation of chronic pain symptoms after the 2012 Accident.

[155]     I find that the analysis in Schnurr is most applicable to Ms. Deol’s position. There is an abundance of evidence establishing that the Plaintiff had developed a chronic pain condition as a result of the 2006 Accident and that six years later it was continuing but relatively stable with the possibility of flare-ups just before the 2012 Accident. We therefore know the original position she would have been in, had the 2012 Accident not occurred.

[156]     It is important to note that the 2012 Accident did not tip the scales from one condition to another. It was not the cumulative effect of the 2012 Accident and the 2006 Accident that caused Ms. Deol to develop a chronic pain condition. Rather, she had this serious condition before the 2012 Accident.

[157]     The language in Ashcroft refers to the negligence of both the settling defendant and the respondent tortfeasor as being “necessary causes” of the injury. Again, the 2012 Accident did not cause the chronic pain condition. That condition pre-existed and was going to continue regardless of the 2012 Accident.

[158]     The evidence in this case makes it possible to consider the position that Ms. Deol was in before the 2012 Accident, and to compare her post-2012 Accident to that position, and to assess damages based on a change in her position.

[159]     I find that Ms. Deol’s injuries sustained in the 2012 Accident are divisible from the injuries sustained in the 2006 Accident.

[160]     I have found that the 2012 Accident caused a permanent worsening of Ms. Deol’s chronic pain condition, increasing her sensitivity to pain. Initially this increased pain was more significant in the approximately two years following the 2012 Accident before she was able to return to work in March 2014. It has since become more manageable but I find she has a greater propensity to suffer symptoms of her chronic pain condition in the future, as compared to the position she would have been in absent the 2012 Accident.

[161]     The Plaintiff is entitled to damages to compensate her for the injuries sustained in the 2012 Accident, to try to put her in the place she would have been in but for the 2012 Accident, but not to put her in a better place than she would have been had the 2012 Accident not occurred…

[211]     I found none of the authorities particularly helpful on the facts, where here, the Plaintiff is young, she suffered a serious loss of enjoyment of life for two years, and will likely suffer some loss of enjoyment of life in the future, incremental to the loss of enjoyment that would otherwise be caused by her chronic pain condition. I find an appropriate award of non-pecuniary damages to be $70,000.