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Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

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Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.
In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.
Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:
[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.

Defense Expert Appointment Dismissed for "Waiting at their Peril"

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Unpublished reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing a defence application for an independent medical assessment for being brought too late in the process.
In the recent case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  The Defendant requested the Plaintiff to attend a 2 day Functional Capacity Assessment less than 84 days before trial.  The Plaintiff refused and a court application to compel attendance was brought.  Master Harper dismissed the application finding the Defendant was too late and waited at their peril.  In dismissing the application the Court provided the following reasons:
Quote late DME dismissal

ICBC's "Two Hats" Derails Litigation Privilege Claim

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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.
In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.
The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.

ICBC's "Casual Disregard" of Court Order Results in Steep Costs Punishment

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, hitting ICBC with a steep costs award for the “casual disregard” of a Court disclosure order.
In today’s case (Norris v. Burgess) the Plaintiff was injured in a 2010 collision and sued for damages.  Prior to trial ICBC offered to settle the claim for $678,500.  The Plaintiff rejected this offer and proceeded to trial where a jury awarded $462,374.  After statutory Part 7 deductions the amount was reduced by $70,196.
Normally where a Plaintiff is awarded less than a defence formal settlement offer they are stripped of some of their costs and sometimes ordered to pay some of the Defendant’s costs.  ICBC sought such a result but the Court refused.  Mr. Justice Funt instead ordered that ICBC pay the Plaintiff an additional $155,340.86 in ‘special costs’ because the insurer disregarded a Court order to produce surveillance evidence.  In reaching this decision Mr. Justice Funt provided the following reasons:
[65] As noted, at the October 20, 2015 trial management conference, Justice Koenigsberg ordered the listing and description of any surveillance or video to occur on or before October 23, 2015. The existence of the 2015 Video was not disclosed until the start of the fourth week of trial and was, as Mr. Miller stated, harmful to the defence.
[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.
[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case..

[75]         When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.

[76]         The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[77]         Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

[78]         In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

 
 

$6 Million Damage Assessment After Teen Injured By Corroded Lamppost

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Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for profound injuries after a plaintiff fell two stories after falling while swinging from a corroded lamp-post.
In this week’s case (Mackey v. British Columbia) the Court summarized the facts as follows
On March 31, 2007, when David Mackey was 17, he climbed onto a concrete baluster.  The baluster formed part of a railing along the perimeter of a pedestrian plaza at 812 Wharf Street, overlooking the waterfront, in Victoria.  On the baluster stood a lamp post.  It was about 6 feet tall.  David Mackey swung around the lamp post.  It was corroded to the core.  When David Mackey swung around it, the lamp post came loose.  It tottered, and he fell two storeys onto the concrete walkway below.  He suffered severe traumatic brain injury.
The Court found the injury caused profound disability and awarded damages assessing a lifetime of earnings and care totaling nearly $6 million.
The court reduced this amount by 65% to account for the Plaintiff’s contributory negligence.  In finding the Province 35% and the Plaintiff 65% for the incident Mr. Justice MacIntosh reasoned as follows:

[39]         From the evidence above, I reach the following conclusions.

[40]         The lamp post was severely corroded when David Mackey fell.  The lamp post had never been inspected or maintained to see that it was intact.  The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it.  Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.

[41]         But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened.  What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way.  Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below.  I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements, [2012] 2 S.C.R. 181:

[9]        The “but for” causation test must be applied in a robust common sense fashion.  There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  [Citations omitted.]

[10]      A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.  Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]

[42]         Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened…

[60]         When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall andPaquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident.  David Mackey was nearly 18.  He mounted a safe railing where there was a dangerous drop below.  He had probably also heard Ms. Arner’s warning to Ryan Ramsay.  On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job.  The lamp post, on top of the railing, was its own accident waiting to happen.  As noted earlier, it could have been pushed over by a force of only 12.5 pounds.

No Forced "Consent" When Attending Court Ordered Medical Examination

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Update January 30, 2017 – the below case, in reasons for judgement released today, was largely overturned on appeal
______________________________________________
Although there are conflicting authorities on the subject in British Columbia, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding it is not appropriate for a Court to order a Plaintiff to sign a ‘consent’ form when attending a court ordered independent medical exam.
In today’s case (Gill v. Wal-Mart Canada Corporation) the Plaintiff sued the Defendant for personal injuries after a slip and fall incident.  In the course of the lawsuit the Plaintiff agreed to be examined by a physician of the Defendant’s choosing but refused to sign a ‘consent’ form the physician required.  The Defendant asked the Court to order the Plaintiff to sign the consent form but the application was dismissed.  In finding judicially ordered ‘consent’ to be inappropriate Master Harper provided the following reasons:

[31]         In my view, because an order compelling an IME is discretionary, I am not bound by Kalaora or Nikolic to order that the plaintiff sign the consent form. I prefer to follow the reasoning of Peel. In addition, although Dr. Travlos and the College have a legitimate interest in ensuring that a person attending for an IME is properly informed about all aspects of the IME, there are alternative methods to compelled consent to convey the information. I conclude that the plaintiff in this case should not be compelled to sign the consent form required by Dr. Travlos.

[32]         Even if I were of the view that Ms. Gill should be compelled to sign a reasonable consent form, Dr. Travlos’s consent form contains clauses that are not reasonable.

i)       First, Ms. Gill should not be expected to have to agree in writing as to the definition of physiatrist: Slobodzian v. Mitchell and Hameiri (unreported, February 2, 2015, Courtenay Supreme Court Action S085376);

ii)     Second, the last paragraph of the consent form contains this statement: “I am signing this document voluntarily …”. Ms. Gill would not be signing the document voluntarily if compelled to do so by court order;

iii)    Third, the consent form says:

I hereby release Dr. Travlos, his employees and agents, from any and all claims whatsoever, which may arise as a result of the release of the above information.

The clause is difficult to interpret. Dr. Travlos might mean that he is released from liability for releasing the report to the referring source. Or, he might mean that he is released from liability for releasing the report to someone other than the referring source. In either case, a release of liability goes beyond the bounds of a reasonable consent form.

[33]         In Mund v. Braun, 2010 BCSC 1714, the IME doctor required the execution of a jurisdiction agreement. The plaintiff declined to sign it and the court declined to order the plaintiff to sign it on the basis that the court did not have jurisdiction to order the plaintiff to sign a jurisdiction agreement. The release of liability in Dr. Travlos’s consent form is in the same category and is therefore objectionable.

[34]         Both Dr. Travlos and the College have a legitimate interest in ensuring that persons attending IMEs understand the nature and purpose of the IME. Clarity is always better than confusion.

[35]         The options presented on this application were limited to the court ordering the consent form be signed, or not. In my view, there are other options. The desired outcome of a party attending an IME fully informed about the IME could be met if the court were asked to incorporate reasonable terms into the order granting the IME. Those terms would meet the reasonable and legitimate interests of the plaintiff, the defendant, the examining doctor and the College.

[36]         Of course, the terms would have to be acceptable to the doctor or the exercise is meaningless. A drawback to this option is the unnecessary increase in court applications. Both Dr. Travlos and the doctor in Kalaora said that most people seeing them for IMEs consent. It would not be proportionate to require all applications for IMEs to result in a court order.

[37]         The concerns about “improved communication by physicians” and “enhanced understanding by patients” expressed in the guideline could also be met by the doctor providing written information about the IME to the party in advance of the examination. This option would be simpler and less expensive than a court order incorporating the information the doctor seeks to convey to the person being examined.

[38]         An even better option might be for the College to amend its guideline to provide recommendations for physicians conducting IMEs that are court-ordered and not by consent. 

$80,000 Non-Pecuniary Assessment for Permanent, Partially Disabling Shoulder Injury

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Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $80,000 for a permanent, partially disabling, shoulder injury.
In today’s case (Mocharski v. Ngo) the Plaintiff was involved in a 2011 collision that the Defendant motorist was found fully at fault for.  The Plaintiff suffered a left shoulder injury which, despite surgical intervention, remained problematic and resulted in a permanent partial disability.  In assessing non-pecuniary damages at $80,000 Mr. Justice Abrioux made the following findings:

[105]     When I apply the principles to which I have referred to the evidence in this case, I make the following findings of fact and reach certain conclusions. As a result of the Accident, the plaintiff sustained the following injuries:

(a) a left shoulder glenohumeral Iabral tear and acromioclavicular joint pain,

(b) left shoulder impingement syndrome,

(c) myofascial pain syndrome affecting the neck,

(d) cervicogenic headaches,

(e) myofascial pain syndrome affecting the back.

[106]     I also find that:

(a) the plaintiff sustained moderately severe soft tissue injuries in the Accident as well as an injury to the left shoulder that ultimately required surgical intervention;

(b) he is left with a permanent partial disability to his left shoulder and will continue to suffer from that condition;

(c) while the symptoms arising from the non-shoulder injuries have lessened considerably over time, the plaintiff was essentially totally incapacitated from a physical perspective for a period of approximately one year due to the injuries sustained in the Accident. These symptoms have and will continue to provide him with occasional discomfort in the future depending on the activities he performs…

[115]     Each case turns on its own facts. Taking into account the Stapley v. Hejslet factors, I award the plaintiff $80,000 under this head of damages.

Defendant Ordered to Pay $7,500 After "Body-Checking" Plaintiff During Debt Collection

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay a Plaintiff $5,000 in non-pecuniary damages and a further $2,500 in punitive damages following an assault during a debt collection.
In today’s case (Ross v. Dhillon) the Plaintiff attended the Defendant’s business to collect an outstanding business account with respect to some industrial equipment purchased by the Defendant.  The Defendant made partial payment and the Plaintiff,  unsatisfied with this, removed a part from the equipment.  As he attempted to leave the Defendant “body‑checked him into the door frame and held him against it for several seconds.”.
The Court found this incident caused a minor aggravation of pre-existing injuries the Plaintiff suffered in a collision.  In assessing damages at $7,500 Mr. Justice Smith provided the following reasons:
[20]         I therefore find that the plaintiff experienced a minor and short‑lived aggravation of his neck and back symptoms, accompanied by an equally minor and short‑lived condition that produced some numbness in his hand…

[23]         Considering the minor nature of the plaintiff’s injuries, including the brief aggravation of his previous symptoms and including a component for aggravated damages, I award the plaintiff non‑pecuniary damages of $5,000.

[24]         I also find this to be an appropriate case for punitive damages. The defendant’s conduct was willful, reckless and dangerous. While his conduct was at the low end of any scale that would measure violent conduct, no amount of violence was an acceptable response to this dispute about a relatively small debt.

[25]         In Van Hartevelt v. Grewal, 2012 BCSC 658, the court awarded $10,000 in punitive damages to a plaintiff who was beaten about the head and kicked in the ribs. The violence in this case was much less severe, and I award punitive damages of $2,500.

Adverse Inference Drawn For "Absence of Evidence From Any Treating Doctor"

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, drawing an adverse inference for a Plaintiff in a personal injury lawsuit who failed to lead evidence from any treating physician.
In this week’s case (Mohamud v. Yu) the Plaintiff was involved in two collisions and sued for damages.  The Defendants admitted fault for both crashes.  At trial the Plaintiff sought over $260,000 in damages.
The Plaintiff led expert evidence in support of her case but none of these witnesses were treating physicians.  Madam Justice Fisher rejected much of the Plaintiff’s claim awarding of $61,532.  Influential in this decisions was the absence of expert evidence from treating physicians.  In drawing an adverse inference Madam Justice Fisher reasoned as follows:

[33]        The plaintiff was a poor historian. Important parts of her evidence were inconsistent with statements she made (or did not make) to others, such as her family doctor and the experts who testified on her behalf. Some of these inconsistencies may be quite normal, but the extent of the inconsistencies here are of concern, particularly in the absence of any objective confirmatory evidence from a treating doctor or other medical professional. Most notably, the plaintiff’s family doctor, who saw her throughout these years, did not testify or provide an expert report. It is especially troubling that this is a doctor whom the plaintiff said was her long-time, trusted family physician.

[34]        In these circumstances, the defendants urge me to draw an adverse inference from the plaintiff’s failure to call evidence from her family doctor…

[39] The plaintiff’s explanation for her failure to call her family doctor was that she called the witnesses she considered the most necessary, she did not have the means to obtain “every possible medical report”, the family doctor is not always the best able to give an opinion “given the era of walk-in clinics and five minute appointments” and it was open to the defendant to call the doctor, especially since the clinical notes indicate that the doctor prepared a CL19 report. On this last matter, counsel for the defendants advised the court that he not aware of such a report and had never received a copy.
[40] I certainly accept that a plaintiff is entitled to call the witnesses she considers necessary but I do not agree that the family doctor in the circumstances here would not be the best able to give an opinion. While it does appear in the clinical records that the plaintiff saw other physicians from time to time, her primary care physician is the only person who could have given the court an opinion about the plaintiff’s condition, informed by a long standing relationship and observations throughout the relevant periods of time (following not only the two accidents but also the Skytrain fall). This takes on more importance in light of the plaintiff’s evidence that she would have described all of her symptoms and complaints to her doctor and that whatever was recorded in the clinical notes reflected what she told the doctor at the time. I do not consider the fact that the defendant could have called the doctor as a witness to adequately explain this plaintiff’s failure to do so.
[41] The circumstances here are very different from those in Buksh, where the absent witnesses were not long-standing family doctors and the issue arose in the context of a trial where all clinical records had been admitted into evidence and had been before the jury. They are, however, quite similar to the circumstances in Andrews v. Mainster, 2014 BCSC 541, where the plaintiff failed to call any health care professionals who treated her before or after the accident. In that case, the court drew an adverse inference.
[42] Accordingly, I consider it appropriate in these circumstances to draw an adverse inference from the plaintiff’s failure to call her family doctor to give evidence, at least as a treating physician if not also as an expert witness.

BC Supreme Court – No "Joint and Several Liability" For Stanley Cup Rioters

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Reasons for judgement were released yesterday by the BC Supreme Court,  Vancouver Registry, addressing if an individual causing property damage in a riot can be ‘jointly and severally’ liable for damage caused by others in the riot.
In this week’s case (ICBC v. Stanley Cup Rioters) British Columbia’s government monopoly auto insurer, ICBC paid out numerous claims after vehicles were damaged and destroyed in the 2011 Stanley Cup Riot in downtown Vancouver.
ICBC sued numerous individuals.  As with any lawsuit, collecting damages is a concern and some of the Defendants had deeper pockets than others.  ICBC argued that Defendants should be jointly and severally liable (a legal principle that allows a Plaintiff to collect all the damages from one of many responsible parties, typically the one with the deepest pockets, and leaving it to that Defendant to chase down and collect the fair share from other liable parties.).
Mr. Justice Myers rejected this argument finding that the Defendants were individually responsible for the damages they caused but the principles of joint and several liability were not triggered in this riot.  In reaching this conclusion the Court reasoned as follows:

[31]     In its notice of civil claim, ICBC pleaded:

499.     Each and all of the Defendants, named and unnamed, having participated in the Riot, are joint tortfeasors, along with others who participated in the Riot, and who joined in a common unlawful purpose of rioting contrary to criminal and common law, and thereby caused or contributed to the losses of the Plaintiff, and are liable to the Plaintiff for any or all of the damages caused by the Plaintiff herein.

The proposition is that the unlawful riot was a common design.  Every one who participated in it is a joint tortfeasor and therefore liable for all the damage done in the riot.

[32]     It is to be borne in mind that this was not a planned or deliberate riot.  There was no ringleader; it was not instigated by a person or group of people.  It was spontaneous.  Under these circumstances, it appears to me ICBC’s proposition is too broad.

[33]     First, it is too broad on a geographical level:  every one participating in the riot on Seymour Street would be jointly liable for damage done by participants on Howe Street.

[34]     Second, it is too broad from a conduct point of view.  For example, someone who has refused to leave the riot in order to take photographs would be equally liable for the destruction of a vehicle by someone else even if they never encouraged that destruction, much less laid hands on the vehicle.

[35]     Third, it is too broad because it does not recognise that the assistance rendered to the principal tortfeasor must be substantial.

[36]     Fourth, it begs the difficult factual distinction between whether there was one riot or several.  (Although the riot has been referred to in the singular, and I will continue to use the term, it is imprecise for the purposes of determining joint liability for a tort.)

[44]     As I stated, this was not a directed or coordinated riot.  Nor did it involve gangs spontaneously coalescing and then moving from location to location in unison.  As I set out above, I do not accept that participation in the riot, in itself, establishes joint and several liability for torts committed during the riot.  As noted by Lords Neuberger and Sumption in Sea Shepherd, joint tortious liability must be kept within reasonable bounds.  The analysis must be more fine-tuned than looking at the riot as a whole.  For most of the defendants, the question that must be asked is whether they acted in concert with the common end of destroying a vehicle and whether the destruction occurred as a result (above, para. 27).

[45]     Another way of expressing the question is to ask whether a defendant was part of the group that destroyed the vehicle and was his participation more than trivial.  That has to be examined vehicle by vehicle, defendant by defendant.  A defendant may be liable for damage to more than one vehicle if he took part in damaging those vehicles; that does not make him liable for all of the vehicles.

[46]     Several people spontaneously arriving at a vehicle and some of them cheering when another damages the vehicle does not amount to a common design.  There is no case where the law has gone that far.  Cheering or observing is not sufficient participation upon which to found joint liability.

[47]     People “piling on” a vehicle in order to damage or destroy it may be joint tortfeasors if it is apparent they acted together pursuant to a common design to do the damage.  In a riot context, I do not think it necessary that the plan be explicitly laid in advance between them.  They may also be concurrent tortfeasors if the damage they caused is impossible to apportion.  In that case, each is liable for the full amount of the loss.  They may also both be liable as principal tortfeasors (per Lord Toulson at para. 19 ofSea Shepherd).

[48]     There are several instances where a defendant did something to a vehicle that did not harm it (for example, attempting to remove a gas tank cover) and the vehicle was destroyed at a later point, there being no evidence as to the link between the defendant’s initial action and the ultimate destruction.  In that case, I do not think there can be any liability.  That can be viewed as an instance where, to use Lord Neuberger’s framework (above, para. 25), no assistance was provided to the tortfeasors who are primarily liable; i.e., those who caused the damage.  It can also be viewed as the defendant having only a similarity in design but being an independent actor not causing damage per Scrutton L.J. in The Koursk (above para. 27).