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"Reprehensible" Conduct Results in Special Costs Order Against Plaintiff Following Injury Trial

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

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay ICBC special costs following ‘reprehensible‘ conduct.
In today’s case (Tambosso v. Holmes) the Plaintiff was injured in two collisions and sued for damages.  Prior to trial the Plaintiff received $36,895 in tort advances from ICBC.  After a largely unsuccessful prosecution the trial damages awarded were slightly less than this resulting in a ‘zero judgement’  award.   As a result the Plaintiff was ordered to pay the Defendant costs.
The Court went further, however, and ordered that the costs be increased to special costs as a result of the Plaintiff’s conduct.  In reaching this decision Mr. Justice Jenkins provided the following reasons:

[33]         Commencing at para. 52 of my reasons for judgment in this matter, I embarked upon my findings related to the credibility of the plaintiff. Previously in those reasons I had come to a conclusion that the plaintiff’s evidence regarding the “triggering event” causing her alleged PTSD and other psychological concerns had not happened. To be clear, the event in which the plaintiff claimed she feared for her life and had to jump out of the way of the vehicle driven by the defendant Holmes, as per her evidence that “his eyes are imprinted on my mind” and “I thought he was going to kill me, drive over me…” did not occur. Her evidence in this respect was contradicted by the independent witness who stated she had not exited her vehicle, as well as by the evidence of the plaintiff’s friend and passenger that the plaintiff had exited her vehicle but had taken only a few steps before jumping back into their vehicle before the Holmes vehicle came up the hill and passed the plaintiff’s vehicle. I found it most likely the plaintiff learned of the look in Mr. Holmes eyes from the independent witness, Jeremy Leal, who was in close proximity to Mr. Holmes immediately after the accident.

[34]         The plaintiff repeated her false version of the events of the 2008 accident to several of the expert witnesses who testified at trial which led those experts to come to opinions as to the plaintiff suffering PTSD and other cognitive damage as a result of the interaction with Mr. Holmes. The deception by the plaintiff continued for several years up to and including the trial.

[35]         In addition, my reasons for judgment at trial referred to clear conflicts between the evidence of the plaintiff and the video surveillance recorded by the defence, her evidence that she was not able to drive after the 2008 accident which conflicted with her driving of a rental car within days of the accident for several months, her Facebook postings, and her evidence at trial which was selective, inconsistent, completely uncooperative, non-responsive and simply false. The plaintiff’s evidence on cross-examination resulted in me coming to a conclusion that she had deliberately lied to her disability insurer, to Community Futures where she was paid for attempting a business development plan, to Canada Pension Plan staff and more, all of which resulted in her maintaining an income from the time of the 2008 accident up to trial in 2014. The plaintiff would declare in one instance that she was disabled from the 2008 accident and when convenient to keep funds coming her way would declare she was not disabled by that accident.

[36]         The conduct of the plaintiff which must be considered most outrageous and reprehensible for the purposes of a special costs award were the circumstances under which her former friend, Rebecca Aldous, came to be a witness at trial for the defence. Those circumstances are described commencing at para. 188 of my reasons for judgment, which included reference to a voice mail message left by the plaintiff two days before Ms. Aldous was to testify. That message can only be interpreted as an attempt to intimidate Ms. Aldous from testifying. Why the plaintiff would leave a voice mail message of that nature which could and did come back to haunt her is a mystery; however, it is reflective of the behaviour of the plaintiff throughout the trial.

[37]         I have no doubt that the actions of the plaintiff at trial and outside the courtroom have amounted to an ongoing effort to deceive the court which conduct deserves rebuke.

[38]         I agree with the principles in awarding special costs listed by Madam Justice Gropper in Westsea Construction Ltd. A court must show restraint and must be satisfied of special circumstances to justify the award. The conduct rationalizing an award of special costs must also be “reprehensible”. Those principles are present in this case and are supported by the conduct of the plaintiff detailed in the reasons for judgment for the trial and earlier in these reasons.

[39]         The defence is entitled to special costs to be taxed by the registrar, such costs as incurred by the defence from the commencement of each action until the conclusion of the trial.

How Much is it Worth if You Can't Drive Your Ferrari?

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If you own a Ferrari and really want to drive it but can’t because of another’s actions, how much is that worth?  $15,000 according to reasons for judgement released today by the BC Supreme Court.
In today’s case (Miller v. Brian Ross Motorsports Corp.) the Plaintiff’s Ferrari was damaged while being serviced at the Defendant dealership.  The Plaintiff sued for damages arguing he should be entitled to $80,000 for the period which he could not use the vehicle.  The Court found the Defendant’s conduct did indeed wrongfully deprive the plaintiff of use of this vehicle for a period of approximately 9 months.  In assessing damages at $15,000 Madam Justice Dardi provided the following reasons –
[59]        In assessing the appropriate quantum of damages for the loss of use, I have considered the following factors:

  • The plaintiff derives great pleasure from driving his Ferrari and he was deprived of driving it for many months including through the summer months of 2013.
  • During the Material Period, the plaintiff had an alternative vehicle, the Acura, available for transportation purposes.
  • Although the plaintiff endeavoured to drive his Ferrari as frequently as possible, he would not have driven it on a daily basis throughout the Material Period. On his own testimony, he did not drive the Ferrari in the rain, or for work purposes. The Ferrari was insured for “pleasure” and could only be utilized for work purposes a maximum of six days per month.
  • The plaintiff travelled away from Vancouver for work and for pleasure during the Material Period.
  • Although the plaintiff adduced evidence of a rental rate from Mr. Stirrat of the Vancouver Car Club for a substitute Ferrari, he did not take steps to rent such a vehicle. The defendant challenges the reliability of Mr. Stirrat’s evidence on the rental rate. The rate the plaintiff urges this court to apply is the advertised price and notably, Mr. Stirrat was unable to confirm if any vehicle had, in fact, been rented at that price. In addition, the advertised vehicle is not the same model or year as the Ferrari. Further, although the plaintiff calculated the annual rate by extrapolating the monthly rate, no evidence was provided regarding whether the price would differ for long term renters. Overall, I found the evidence regarding the advertised rental rates to be of limited assistance.

[60]        The plaintiff points out that if he had rented a replacement Ferrari, he would have been entitled to special damages for incurring that cost. However the plain fact is that he did not rent a replacement vehicle. Here, the plaintiff’s claim is for general or non-pecuniary damages for loss of use. The doctrinal underpinnings related to general damages are distinct from special damages. Special damages are awarded to compensate a plaintiff for out-of-pocket expenses and generally are calculable monetary losses. In contrast, an award of general or non-pecuniary damages is intended to compensate the plaintiff for more intangible losses and is not a matter of precise arithmetical calculation.
[61]        Finally, in assessing general damages, the court must, on a balanced consideration of the evidence, endeavour to tailor an award that is reasonable and fair as between the parties: Kates v. Hall, 53 B.C.L.R. (2d) 322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at 314.
[62]        On a balanced consideration of the relevant factors, I assess the plaintiff’s damages for loss of use of the Ferrari during the Material Period as $15,000.

Bare Assertion of Contemplated Litigation Does Not "Cloak Investigation" In Privilege

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing the merits of a claim for litigation privilege.
In today’s case (Buettner v. Gatto) the Plaintiff was injured in a collision and advanced a claim for damages.  The Plaintiff retained counsel.  Liability was initially admitted and then denied by ICBC.  The Plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once Plaintiff counsel was assigned.
The Court rejected this finding this position was based on little more than a bare assertion.  In ordering production of the requested documents Master Caldwell provided the following reasons:

[31]         If this argument is correct, all that any or all adjusters must do in any or all motor vehicle cases is determine, at the instant that the incident is reported, that he or she is going to deny liability and/or the presence of damages without the need to show any basis or accountability for such decision. Having done so, that will virtually ensure that litigation will be required to resolve any claim for loss. Thereafter, having created the virtual certainty of litigation, the defence will be able to reasonably argue that any and all investigations done from the instant that the incident is reported is for the dominant purpose of the conduct of the litigation which they ensured by the arbitrary denial of fault or damage.

[32]         In my respectful view this circular argument runs counter to the letter and spirit of the Hamalainen case, the numerous cases which were cited in and followed by Hamalainen and the numerous cases which have cited and have followed Hamalainen. It runs counter to the stated object of our Supreme Court Civil Rules, B.C. Reg. 168/2009, the securing of the just, speedy and inexpensive determination of every proceeding on its merits. It runs counter to the Supreme Court of Canada decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 and its findings at paras. 60 and 61 where it comments in affirming the dominant purpose test and the role of litigation privilege, that:

The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.

And,

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client

And finally,

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[33]         Inherent in the reasonable prospect/dominant purpose test must be the expectation or requirement that there be at least some evidence of bona fides, due diligence or accountability on the part of the party seeking to rely on the prospect of litigation, which was created by their own actions, to support their claim of litigation privilege. Absent such requirement the test itself becomes meaningless. This is particularly of concern where, as here, the same insurer provides coverage for both parties and, presumably, owes each a duty of some form of meaningful investigation and determination of facts before reaching a decision on an issue as important as fault or liability for a motor vehicle accident.

[34]         I find that there is no evidentiary basis provided to support the decision of Ms. Hilliam to deny liability. Her unsupported decision cannot be used as justification for her to conduct a proper investigation into the facts of this motor vehicle accident while cloaking that investigation in a claim of litigation privilege. The time line and analysis of the court in Hamalainen is applicable to this case and to the evidence here, save as to the assertions of Ms. Hilliam which I reject. As in Hamalainen, the claim of litigation privilege regarding documents 4.7 to 4.12 inclusive, which documents were created prior to the June 17, 2013 form letter communicating the denial of liability, fails and all such documents are ordered produced forthwith and unredacted.

$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

Written by admin on . Posted in ICBC Pelvis Injury Cases, Uncategorized.

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.
In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.

Out of Province Insurers Have No Subrogation Rights Over Part 7 Benefits Paid

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, shutting down an attempt by the Progressive Max Insurance Company from exercising subrogation rights with respect to Part 7 benefits paid.
In today’s case (Middleton v. Heerlin) the Plaintiffs were US residents involved in a motorcycle collision in BC.  They were insured with Progressive and received over $100,000 in medical/rehab and other benefits from Progressive by virtue of Progressive filing a Power of Attorney Undertaking promising to provide their insured with minimum coverage required under BC law for BC crashes.
In the Plaintiffs lawsuit against the alleged at fault motorist Progressive sought to get their money back arguing they had rights of subrogation.  The Court shut this argument down noting similar arguments were dismissed by the BC Court of Appeal in 2000 and that recent statutory changes do not change this result.  In dismissing Progressive’s argument Mr. Justice Johnston noted as follows –

[11]         When Matilda was decided, the relevant portions of s. 25 of the Insurance (Motor Vehicle) Act provided as follows:

25.       (1)        In this section and in section 26, “benefits” means a payment that is or may be made in respect of bodily injury or death under a plan established under this Act, other than a payment pursuant to a contract of third party liability insurance or an obligation under a plan of third party liability insurance, and includes accident insurance benefits similar to those described in Part 6 of the Insurance Act that are provided under a contract or plan of automobile insurance wherever issued or in effect.

            (2)        A person who has a claim for damages and who receives or is entitled to receive benefits respecting the claim, is deemed to have released the claim to the extent of the benefits.

[12]         The court noted at para. 7:

As the chambers judge noted, in the absence of any express statutory right of subrogation the insurer’s right of subrogation is a derivative right only, which must be advanced in the name of the insured. The insurer is placed in no better position than that of the insured. The revised form of question 1 could be answered “no” simply on the ground that Progressive has no status as a subrogated insurer to advance any claim against the defendants in its own name.

The revised question, to which the above answer was given, was stated in this way at para. 2:

Does Progressive (the third party) have an enforceable right under the contract or the common-law to recover from the defendants all or part of the funds, being $17,800.00 U.S. paid by Progressive to the plaintiff?

[13]         It would seem, therefore, that unless the plaintiffs can point to an express statutory right of subrogation, the answer in these cases must be governed by the result in Matilda set out above.

[14]         In spite of the finding in para. 7, the court in Matilda went on to deal with what it said was a broader issue argued by the parties – provincial legislative competence over extra-provincial insurance contracts, which it framed in this way at para. 8:

The issue is whether the provisions of the Insurance (Motor Vehicle) Act purport to modify the terms of extra-provincial policies and thereby exceed the reach of provincial jurisdiction. In my view, they do not. The focus of s. 25(1) and (2) is on the tort action by Progressive’s insureds against ICBC’s insureds. The torts are the motor vehicle accidents that occurred within British Columbia and clearly are within provincial jurisdiction. The subsections simply provide that accident benefits cannot be claimed in the B.C. tort actions irrespective of where the policy paying the benefits was made. That does not purport to modify the terms of the extra-provincial policies. It merely limits the damages recoverable in tort whether by the insured beneficially or Progressive as subrogated claiming in the name of its insureds. In my opinion, the subsections address an incident of provincial jurisdiction over torts within the province and do not attempt to legislate terms of extra-provincial contracts. [Underlining added.]

[15]         Although there is no argument in these applications that the current version of the statute purports to modify extra-provincial contracts, the underlined portions above would appear to offer no comfort to Progressive, as there is no material difference in wording between the section before the court in Matilda and s. 83(1) and (2) invoked by the defendants in these cases…

[21]         I conclude that Matilda governs the interpretation of s. 83, is not affected by the change in wording from s. 26 to s. 84, and is a full answer to these applications.

[22]         Both applications are dismissed with costs to the defendants.

"Careless" If Not "Deceptive" Expert Opinion Judicially Criticized

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Adding to this site’s archived cases criticizing expert advocacy in the guise of opinion, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, criticizing such an opinion.
In today’s case (Hendry v. Ellis) the Plaintiff was injured in a collision and sued for damages.  THe Defendant hired a doctor who minimized the connection between the Plaintiff’s complaints and the collision.  At trial, through cross examination, the doctor made various admissions beyond the borders of the opinion contained in the report.  In criticizing the physician’s opinion as “careless” if not outright “deceptive” Mr. Justice Jenkins provided the following reasons:

[26]         Expert evidence tendered at trial was that the duration of soft tissue pain is considered to be 12 to 16 weeks and if pain is experienced after that time, it is due to some other mechanism. As Ms. Hendry had no back pain prior to the accident, it is clear that some other mechanism from the accident is the cause or contributing to her current pain.

[27]         I will not review in detail the medical evidence which is lengthy. However, I can safely say that I accept the opinion of Dr. Sawhney, the plaintiff’s doctor, and do not find the evidence of the defence expert, Dr. Bishop, to be particularly helpful. I have no doubt about Dr. Bishop’s qualifications, however, there were significant inconsistencies in his evidence provided in an earlier case, the transcript of which was tendered at trial. At trial he agreed the absence of an objective basis for pain does not invalidate pain but he did not say so in his report.

[28]         At trial, Dr. Bishop admitted that the plaintiff continues to suffer pain and if the motor vehicle accident did not occur, she would not have experienced the soft tissue injury caused by the motor vehicle accident that initiated acute pain, and he also stated that pain triggers a psychiatric reaction that can lead to chronic pain which is what Ms. Hendry is experiencing. However, once again he did not say so in his report. Dr. Bishop also admitted most chronic pain patients at three years after the accident will likely not make considerable progress or at least he agreed that the chances of significant progress are low.

[29]         I will just refer as well to the notes just to save time in the written submissions of the plaintiff in paras. 48 through 53 which I accept those references in the written submissions of the plaintiff regarding the evidence of Dr. Bishop. These submissions were:

48.       He [i.e. Dr. Bishop] admitted Ms. Hendry had no prior history of low back pain.

49.       He admitted that numerous medical studies have been published, put that put that 3-15% of people continue to have pain after a soft tissue injury and that by definition, Ms. Hendry is in that percentage of people.

50.       In a previous case he had admitted that there is a leading medical theory that explains why people have pain after 12-16 weeks: central nervous system hypersensitivity theory, but in the case at bar he denied it was a leading theory, even though he accepted it.

51.       He admitted that he did not advise the court in either of his report that 3-15% of people continue to have pain after a soft tissue injury even though he knew he was writing his second report specifically for the purpose of an imminent trial.

52.       It is respectfully submitted that Dr. Bishop did not meet the requirement of an expert in their duty to assist the court and to candidly disclose alternate theories that could account for the plaintiff’s pain. At best, it was careless, at worst, it was deceptive by omission.

53.       He finally admitted that MVA injuries were the only reason that started the plaintiff down the path of chronic pain. When asked if the car accident initiated the process, he finally admitted that yes it had. He said that he did not put this in his report because “I’m bound by the questions I was asked”. With respect, this is an irresponsible attitude for an expert to hold.

[30]         Dr. Bishop also stated many times he does not know the objective cause of her pain as no bone scans have been performed and she has not seen a psychiatrist for testing. I find that the cause of the pain has been the soft tissue injuries and other injuries, some of which may not now be identified as per Dr. Bishop and that her pain is chronic in nature and most likely to continue.

Speculation of Further Lawsuit Not Enough To Trigger Adjournment

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether an adjournment should be granted in the face of a recent collision.
In today’s case (Wall v. Kexiong) the Plaintiff was involved in three collisions and sued for damages with the claims being scheduled for trial at the same time.  The Plaintiff was then involved in a fourth collision where liability was apparently in dispute.  The Plaintiff did not start a lawsuit but the Defendant argued the scheduled trials should be adjourned in the event the Plaintiff commenced a further action.  In declining to adjourn the trials based on this speculative development Master Muir provided the following reasons:

[5]             The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:

[15] The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.

[6]             I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.

[7]             The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.

[8]             The plaintiff advances significant prejudice if there is a delay in this matter. Hence, counsel says that if there is an adjournment, she should have a significant advance in the amount of approximately $80,000 to allow her to deal with the financial impact that these matters have had on her, and points out that the first accident occurred in May of 2010, five years ago.

[9]             In all of the circumstances, as I said, although I would generally in circumstances of indivisible injury grant the order sought by the defendant, given the prejudice to the plaintiff and in the circumstances that the fourth action has not been commenced, I find that it would be inappropriate to grant the order sought, and I decline to do so.

Court Reduces Injury Victim's Compensation for Standing up to Criminal

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with a troubling finding of contributory negligence.  The Court assessed a Plaintiff partly liable for injuries sustained while being criminally assaulted by a Defendant for simply standing up to his assailant.
In today’s case (MacKay v. Jhulley) the Plaintiff was assaulted by the Defendant who struck him in the head with a one metre long metal pole.  The Plaintiff suffered permanent injuries which “severely  impaired” him .  The Defendant was criminally convicted of uttering threats and committing an assault with a weapon.
The Plaintiff sued for damages which were assessed at just under $350,ooo but these were then reduced by 15% for contributory negligence.  The negligence in question? Stepping outside of his home to confront his attacker.
Mr. Justice Kent provided the following  reasons in reaching this conclusion –

[23]         In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this is a case where the law requires the findings of the Provincial Court in respect of the criminal charges to have been conclusively established against Mr. Jhulley in the present civil proceeding. Those findings include that:

·                 Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay over the phone before driving over to the latter’s house;

·                 Mr. Jhulley was the aggressor throughout;

·                 Mr. Jhulley presented himself at the house with a metal pole in his hands and swung at Mr. MacKay several times through the front window before proceeding to the back of the home;

·                 Mr. Jhulley approached Mr. MacKay and struck him once on the head with a metal pole causing a wound;

·                 Mr. MacKay defended himself by striking the accused in the right eye area with his fist;

·                 Mr. Jhulley was not acting in self-defence;

·                 Mr. MacKay was never the aggressor, and did not have an object in his hands when he approached Mr. Jhulley, rather he was simply defending himself throughout; and

·                 Mr. MacKay did not carry out any sort of unprovoked assault.

[24]         These findings are completely dispositive of the liability issues in this case, including Mr. Jhulley’s counterclaim for damages for personal injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of assault and battery, and Mr. Jhulley’s counterclaim for personal injuries sustained in the altercation is dismissed.

[25]         I would add that even if I were not bound by the findings in the criminal proceeding, I would nonetheless have made essentially the same findings on the evidence in this case. Mr. Jhulley is an unreliable and incredible witness who gave false testimony on numerous points. At his criminal trial, he admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence, but in the present trial he testified that he never laid hands on the pole at any time but rather struck Mr. MacKay with a wooden two-by-four. The evidence of the assault at the window, damaging both the curtain and the sill, is overwhelming and Mr. Jhulley’s denial that any such incident occurred is completely false. Similarly, his testimony that Mr. MacKay took a break from assaulting him to recharge himself with a snort of heroin is a complete fabrication and one so ludicrous that it beggars belief.

[26]         There is simply no doubt that Mr. Jhulley, fuelled by a drunken rage, drove over to Mr. MacKay’s house armed with a metal pole and intent on inflicting grievous bodily harm. It is outrageous conduct for which he must be held fully responsible not only in criminal court but in these civil proceedings as well.

[27]         Having said that, the issue of contributory fault on Mr. MacKay’s part was irrelevant in the criminal trial and it is therefore open to this Court to hear evidence and make findings on that particular issue.

….

[30]         There is, however, one basis upon which contributory fault can be attributed to Mr. MacKay. The evidence establishes that Mr. MacKay was inside the house with his family when Mr. Jhulley first presented himself and swung the metal bar at the windowsill. There was no reason for Mr. MacKay to go outside and confront Mr. Jhulley in such circumstances. Indeed, common sense dictated that the safest thing to do would be to stay in the house and call the police rather than proceeding outside to confront an enraged and intoxicated Mr. Jhulley who was armed with a metal pole and seemingly intent on doing serious harm to Mr. MacKay.

[31]         By leaving the safety of his house and presenting himself unarmed in front of Mr. Jhulley, Mr. MacKay recklessly endangered himself. Had he stayed inside, the risk of serious injury would not likely have materialized and this case would likely have gone no further than the criminal proceedings. Mr. MacKay’s disregard for his own physical safety was clearly a contributing cause of the injuries he ultimately sustained.

[32]         In my view, however, the vast majority of fault for this incident and for the injuries sustained by Mr. MacKay lies with Mr. Jhulley. He formed the intent to inflict injury and carried out that intent in a vicious manner. Mr. MacKay, on the other hand, while perhaps acting foolishly in the circumstances, thought he was in some fashion protecting his family by confronting Mr. Jhulley. His conduct is far less blameworthy.

[33]         In the result, I allocate fault for Mr. MacKay’s injuries 85% to Mr. Jhulley and 15% to Mr. MacKay himself.

Court Finds ICBC Under No Legal Duty To Inform an Insured of Hit and Run Claim Obligations

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.
In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision.  After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene.  The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.
At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist.  The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC.  Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists.  The Court provided the following reasons:

[119]     The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:

[45]      As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

[125]     Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.

Expert Opining on All Plaintiff Injuries Disentitles Second Defence Medical Exam

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, denying a second defence medical exam in circumstances when their first examiner opined on all the Plaintiff’s alleged injuries.
In today’s case (Monohan v. Yang) the Plaintiff was examined by a neurologist of the Defendant’s choosing.  The Defendant sought a second exam with an orthopedic surgeon arguing the Plaintiff was alleging “two distinct categories of injuries, those being neurological and musculoskeletal injuries which require both a neurological and orthopedic assessment.”.
The application was dismissed on the basis that the Defendant’s first chosen examiner opined on all these issues thus making a second exam unnecessary.  In dismissing the defence application Mr. Justice Tindale provided the following reasons:

[21]        In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

[10]      Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives . . .

[11]      Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” . . . 

[12]      Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report . . .

[13]      A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination . . .

[14]      There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff  . . .

[15]      The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary . . .

[16]      Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances . . .

[22]        In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries.  The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

[23]        While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries. 

[24]        Dr. Moll did raise the new issue of a psychological injury.  However, an orthopedic surgeon cannot address that issue.

[25]        For all of the above‑noted reasons, the defence application is dismissed.