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Previous Similar But Recovered Injuries Are Not Indivisible

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Interesting reasons for judgment were released this week by the BC Supreme Court, Campbell River Registry, addressing whether previous similar but recovered injuries are indivisible for the purpose of damage assessment.  In short the Court held that they are not.
In this week’s case (Lawson v. Kirk) the Plaintiff was injured in a 2010 collision.  The Defendant “ has admitted liability for the accident and -quite refreshingly – has admitted the plaintiff was injured in the accident.”.  The Plaintiff has similar injuries fro a previous collisins although these were recovered prior to the 2010 collision.  In finding such injuries divisible Mr. Justice Johnston provided the following reasons:
[45]         Ms. Lawson has agreed that the injuries she suffered in her 2007 accident were very similar to those suffered in this accident, and that her complaints in late 2009, arising out of the 2007 motor vehicle accident, were very similar to complaints she had in 2012 and 2013, following this accident. That raises the question of divisible or indivisible injuries.
[46]         I conclude that, for the purposes of causation, the injuries from the two accidents are divisible. Although Ms. Lawson had very similar complaints of discomfort arising from the same areas of the neck and back, I accept her evidence that her symptoms from the first accident had resolved by the time of the second accident. From the point of view of damage assessment, I find there was no measurable risk that the injuries caused in the first accident which would have resulted in ongoing losses in any event, so that pre-existing risk need not be taken into account in assessing the damages flowing from this defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.
[47]         I say that for these reasons:
·       Ms. Lawson was able to do all of the housework while she and Mr. Furnseth lived in Fort St. John from December 2009 to May 2010;
·       In that same period, Ms. Lawson drove the considerable distance between Fort St. John and Campbell River and back again two or three times with no difficulty;
·       When she returned to Campbell River in late May 2010, Ms. Lawson resumed her duties at the bakery, with no difficulty;
·       Ms. Lawson took up the second job at a fitness center in June 2010, again without difficulty;
·       Ms. Lawson participated in a soccer tournament on the Canada Day weekend in 2010 without difficulty.
[48]         I have accepted Ms. Lawson’s evidence that she was able to do the above activities without difficulty. I have discounted Mr. Furnseth’s evidence that, while the two were in Fort St. John, he and Ms. Lawson engaged in activities such as riding off-road vehicles because Ms. Lawson did not testify to those activities.
[49]         The view of the evidence most favourable to the defendant would be that Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who was perhaps more susceptible to injury as a result of the earlier accident, that is to say, in which Ms. Lawson’s damages should be assessed on the basis that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.

Post Crash Engine Failure Found To Be Protected Under ICBC's Collision Coverage

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(Update March 17, 2015 – the below decision was largely upheld by the BC Court of Appeal in reasons for judgement released today)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the scope of ICBC’s collision coverage when a vehicle has mechanical issues following a crash.
In today’s case (Dhadwal v. ICBC) the Plaintiff leased a high end Mercedes valued at $120,000.  He purchased optional collision coverage with ICBC.  The vehicle was driven into a ditch and suffered modest damage which appeared to be cosmetic in nature.   The vehicle appeared intact and was driven home.  The next day, while driving to a repair shop, the engine seized resulting in over $82,000 of needed repair costs.  ICBC refused to cover these arguing it was a mechanical issue unrelated to the collision, or in the alternative, it was unreasonable for the Plaintiff to drive following the crash.  In rejecting both of these arguments and requiring ICBC to pay damages Madam Justice Warren provided the following comments:
[63]         In my view, it is clear from the Hall Report that neither of the two sources of causation, the collision and the subsequent driving, would alone have resulted in the engine failure. It was the combination that caused the damage. Neither was dominant, since the engine damage would not have occurred but for both causes.
[64]         Where there are concurrent causes of a loss for which an insurance claim is advanced, there is no presumption that the coverage is ousted if one of the concurrent causes is an excluded peril. An insurer may oust coverage where one of the concurrent causes is covered and another excluded, but only by express language in the policy to that effect. Whether an exclusion clause applies in a particular case of concurrent causes is a matter of interpretation: Derksen v. 539938 Ontario Ltd., 2001 SCC 72, at paras. 48-49; Chandra v. Canadian Northern Shield Insurance Co., 2006 BCSC 715, at paras. 27, 50.
[65]         For the foregoing reasons, I find that all the damage to the Mercedes, including the engine damage, is damage “caused by … collision of a vehicle with another object … including a … culvert” and, as such, falls within the definition of “collision coverage” in the Optional Policy. Whether the coverage for the engine damage is nevertheless ousted depends upon the construction and application of the exclusion in s. 5.9(a) of the Optional Policy and Prescribed Conditions 5(3) and (4)…
[104]     It is my view that the mechanical breakdown in this case, i.e. the engine damage, was coincidental with the damage that occurred on June 7, 2012, because the two losses corresponded in substance, nature, character, and time. Specifically, the two losses arose from the same incident (i.e. the collision) and were part of the same chain of causation. The collision resulted in immediate body damage and damage to internal components of the Mercedes (specifically, the oil cooler, the oil cooler hoses, the radiator hoses, the radiator outlet tank, and the connection), which in turn caused coolant and engine oil to be lost, and, in combination with the driving after the accident, resulted in the seizure of the engine. In these circumstances I find that the two losses were closely similar, or in other words corresponded in, substance, nature, character, and time.
[105]     I conclude that the exception to the exclusion in s. 5.9(a) applies to the engine damage incurred in this case, as the engine damage was “coincidental with” the damage that occurred immediately upon impact, and the latter was damage for which indemnity was provided under the collision coverage of the Optional Policy…
[126]     Driving a vehicle that has sustained apparently minor damage in a collision to the owner’s home, and then to a repair shop, rather than having it towed, is a common and everyday occurrence. The evidence satisfies me that the observable body damage to the Mercedes was minimal and consistent with a low-impact collision, and that there were no signs of leaking fluids prior to the engine shutting down. I am also satisfied that it is more likely than not that no warning lights were illuminated to indicate low fluids or that the engine should be checked.
[127]     There is no evidence upon which I could conclude that Mr. Dhadwal or his family members did something a reasonably prudent person would not have done, or failed to do something a reasonably prudent person would have done. In particular, there is no evidence from which I could conclude that Mr. Dhadwal or his family members should have known, at any time prior to the moment before the engine shut down, that the fluids had been lost from the collision damaged components…
 

Loans From Your Mother "Are Not Special Damages"

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Update February 3, 2015 – the below judgement was successfully appealed and remitted for a new trial.  The appeal was based on grounds other than the below excerpt.
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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, confirming that the principle sum borrowed when in need following collision related injuries is not a recoverable special damage.
In this week’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision.  The Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000.  The Court noted considerable credibility concerns with the Plaintiff’s evidence and rejected much of his claim.  Included in the rejected damages were funds sought due to loans from family members.  In rejecting this portion of the claim Mr. Justice Ball provided the following reasons:
[184]     Monies Mr. Healey borrowed from his mother or others are not “special damages”. Mr. Healey testified that he did not recall the use to which the borrowed monies were put. Mrs. Healey testified that the borrowed money was used to pay household expenses including rent. Consequently, no evidence before the Court demonstrates that borrowed monies were used in any way, for instance, for therapy for injuries the accident caused that somehow would relate the borrowing to the accident.
[185]     Second, only interest paid on borrowed money would be a “special damage.” And absolutely no evidence before this Court demonstrates that any interest was agreed or paid in relation to the claimed loans. Consequently: no amount is allowed for the borrowed monies: Choma v. Canadian Vehicle Leasing Limited, [1982] B.C.J. No. 1036 (S.C.) and Wong v. Hemmings, 2012 BCSC 907.
 

No Failure to Mitigate Damages For Refusing Medical Marijuana

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While BC Courts do recognize that the cost of medical marijuana can form a basis for damages in a personal injury claim, one matter that, to my knowledge, has never been addressed is whether failing to take prescribed medical marijuana can amount to a failure to mitigate damages.  This issue was dealt with in reasons for judgement released today.
In today’s case (Glesby v. MacMillian) the Plaintiff was involved in a 2009 collision.  Liability was admitted.  In the course of the claim a physician suggested medical marijuana.  The Plaintiff did not follow this advice.  The Defendant apparently argued the damages should be reduced for this failure to mitigate however Mr. Justice Baird declined to do so.  The Court, despite having reservations about the Plaintiff’s credibility, accepted her explanation for not following the advice to try medical marijuana.  In reaching this conclusion the Court provided the following comments:
[47]         Dr. Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr. Kleinman’s, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts…
[69]         I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.
 

ICBC Ruined Our Marriage! "Lost Opportunity of Family Income" Claim Rejected

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While BC Courts do recognize that collision related injuries can lead to the demise of a financially interdependent relationship and lead to increased costs, the evidence to advance such a claim must be persuasive.  Reasons for judgement were released this week rejecting such a claim and discussing the requirements of advancing damages for “lost opportunity of family income“.
In this week’s case (Liu v. Bourget) the Plaintiffs were injured in a collision and sued for damages.  They alleged a variety of losses including that they separated, and thereby incurred greater expenses, as a direct result of the accident.  Mr. Justice Skolrood rejected this claim on the evidence and in doing so provided the following reasons:
[272]     Ms. Cheng and Mr. Liu submit that they have incurred increased expenses from the fact that they now live in separate residences which they say is a direct result of the accident. They say that an award of $50,000 is reasonable in the circumstances.
[273]     Ms. Cheng and Mr. Liu cite Grewal v. Brar et al, 2004 BCSC 1157, where the court awarded the plaintiff $30,000 for the possibility that her marriage might fail as a result of the consequences of the accident. The award was in effect a modified award for damages for loss of marriageability, a head of damages that the courts have long recognized.
[274]     This type of award was described by Mr. Justice Lambert of the Court of Appeal in Reekie v. Messervey (1989), 59 D.L.R. (4th) 481 at 494, 36 B.C.L.R. (2d) 316 (C.A.) at 330-331, as follows:
This aspect of the damage award was called “loss of opportunity to marry” by counsel and by the trial judge. But marriage is not the significant point. the significance lies in the loss of an opportunity to form a permanent interdependency relationship which may be expected to produce financial benefits in the form of shared family income. Such an interdependency might have been formed with a close friend of either sex or with a person with whom a plaintiff might have lived as husband and wife, but without any marriage having taken place. Permanent financial interdependency, not marriage, is the gist of the claim. For the sake of simplicity and consistency, I will now usually call this head of loss: “Lost opportunity of family income”.
[275]     Mr. Justice Lambert went on to describe categories of loss arising under this head of damages which are summarized by Mr. Justice Cole in Grewal as: (1) loss of the benefit of increased income, (2) loss of the benefit of shared expenses, and (3) loss of the benefit of shared homemaking (Grewal at para. 157).
[276]     In Grewal, Mr. Justice Cole rejected the defendant’s argument that this type of award was not available to persons who, at the time of the accident, were already involved in a marriage or inter-dependent relationship (paras. 158-159).
[277]     In the present case, Ms. Cheng and Mr. Liu’s claim is premised on their position that their marital separation is a result of the accident. I have found that the accident was one of many contributing factors to the breakdown and that there was a good likelihood that they would have separated in any event. I also note that unlike in Grewal, there is no evidence from an economist or other expert attempting to value the additional expenses resulting from the separation. Nor was there evidence from Ms. Cheng and Mr. Liu outlining their expenses pre and post-accident.
[278]     Taking all of these factors into account, Ms. Cheng and Mr. Liu have not satisfied me that an award under this head is warranted.
 

BC Seeks to Overhaul All Terain Vehicle Regulation

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The BC Government announced the introduction of Bill 13, the Off Road Vehicle Act, which seeks to overhaul the Province’s system regulating the use of off road vehicles.
You can find the text of the proposed legislation here.
Below is the BC Government’s press release:
VICTORIA – Bill 13, the Off Road Vehicle Act introduced today, promises certainty, safety and regulatory structure for thousands of off-road enthusiasts.
The proposed Off Road Vehicle – or ORV – Act replaces the 40-year-old Motor Vehicle (All Terrain) Act with a modern management structure, designed to align with existing regulatory regimes at minimal cost.
Increased use of quads, snowmobiles and other ORVs has helped British Columbians get out and enjoy the beauty of the province’s backcountry. Bill 13 will help ensure these vehicles are driven in a safe and environmentally responsible manner.
The act, if passed and brought into force, will:

  • Establish a one-time registration system specifically designed to integrate with the pre-existing structure of the Insurance Corporation of British Columbia’s vehicle registry, reducing implementation costs. ORVs will have to be registered and display a clearly visible number plate before they can be operated on Crown or other public land.
  • Allow the development of regulations on the rules of operation (such as wearing helmets), safety standards and conditions of use for a wide range of modern ORVs, including snowmobiles, all-terrain vehicles or “quads”, dirt bikes and utility terrain vehicles.
  • Assist in identifying stolen or abandoned ORVs, by requiring ORVs to be registered in a database that is accessible to peace officers at all times.
  • Provide officers with more effective enforcement tools to target the small number of irresponsible ORV owners that endanger others or damage sensitive habitat. This includes the ability to stop and inspect ORVs for violations, seize an ORV for safety or evidence purposes, and increase the maximum fine for offences from $500 to $5,000.

Included in the proposed ORV legislation is an amendment to the Special Accounts Appropriation and Control Act establishing the ORV Trail Management Sub-account. This will ease the process of providing future investments directly into developing and maintaining trails, delivering lasting benefits to the ORV tourism industry in rural communities.
 The proposed ORV Act is the result of extensive consultation, and represents a fair compromise for all user groups. Implementation, including registration provisions, is anticipated in the fall of 2014.
 
 

Double Costs Application Allowed To Proceed Despite Entered Order Addressing Costs

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In interesting reasons for judgement released today by the BC Supreme Court, Chilliwack Registry, Chief Justice Hinkson determined that a double costs application could proceed despite the entry of an order addressing costs.
In today’s case (Keller v. Pearson) the Plaintiff was injured in a collision and sued for damages.  Prior to trial ICBC offered to settle the case for $70,000.  The Plaintiff rejected the offer and proceeded to trial where the case was dismissed with costs payable to the Defendant.  The Court did not address the consequences of the formal offer.  An order was entered which read “The Plaintiff shall pay the Defendants’ costs in this action, subject to the Plaintiff being at liberty to request to reappear before the Court to make submissions in respect of same.”.
The Defendant then sought double costs relying on their pre trial formal offer.  The Plaintiff argued the Court was functus officio.  Mr. Justice Hinkson disagreed and provided the following reasons addressing the narrow exception to address costs following an entered order:
[10]         The plaintiff contends that it is he, and he alone, who was permitted by the entered order to reappear before the Court to make submissions as to costs, and that the defendants have no basis upon which to advance any submissions with respect to double costs.
[11]         While it may have been open to the defendants to make submissions seeking double costs before the entry of the order, the order addresses their entitlement to costs, subject only to the plaintiff’s request to reappear before the Court. No such request has been made by the plaintiff, and the defendants’ entitlement to costs in the matter has been determined by the summary trial judge.
[12]         In Buschau v. Rogers Communications Inc., 2004 BCCA 142 at paras. 26–27, 237 D.L.R. (4th) 260, Newbury J.A. stated:
[26]      …The Court also had the power to amend the entered order on the basis that it contained an error in expressing the manifest intention of the Court. As stated by Rinfret J. for the Supreme Court of Canada in Paper Machinery, [[1934] S.C.R. 186]:
            The question really is therefore whether there is power in the Court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think — and we see no reason why it should not also be the rule followed by this Court — that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court (In re Swire [(1885) 30 Ch. D. 239]; Preston Banking Company v. Allsup & Sons, [[1895] 1 Ch. 141]; Ainsworth v. Wilding, [[1896] 1 Ch. 673]). [at 188; emphasis added.]
Paper Machinery has been cited on numerous occasions by Canadian courts, including this court in R. v. Blaker (1983), 46 B.C.L.R. 344, at 347, and in Racz v. District of Mission (1988) 22 B.C.L.R. (2d) 70. In the latter case, the Court set aside a “consent dismissal order” entered by a solicitor who had acted without authority. The Court found that it had inherent jurisdiction to correct what would otherwise be an abuse of process and ruled that it was not necessary to require the plaintiff to bring a fresh action in order to set the order aside. On this point, the Court agreed with Chief Justice Sinclair in Morstad v. Quintal (1980) 14 Alta. L.R. (2d) 369 (Q.B.), who had said that [at p. 371]:
… it must surely be within the inherent jurisdiction of this court to grant the relief sought by the plaintiff on the present motion without the necessity of going through the sterile routine of commencing a separate action, a proceeding which would not result in the bringing forth of additional facts or otherwise advancing the administration of justice.
Hutcheon J.A. in Racz noted that in Morstad, the order nisi as entered had been “based on a mutual mistake of fact.” (At 73.)
[27]      Even if the error in the order was not a “clerical” one or an error arising from an “accidental slip or omission” within the meaning of Rule 41(24), then, the court below had the inherent jurisdiction to correct the order insofar as it did not reflect its manifest intention. In the absence of any evidence that the respondents had taken any irrevocable step in reliance on the order, or would suffer undue prejudice were it corrected, I conclude that the Court should have exercised this jurisdiction and corrected its order. In my view, it cannot be in the interests of justice for the respondents to rely on that order to retain a sum to which they have no entitlement in principle.
[13]         I am unable to see that either of the two exceptions discussed in Paper Machinery apply in this case. I am advised that the entered order was drafted by counsel for the defendants.  There is no suggestion that there was any “slip” in drawing it up, nor does it evidence any error in expressing the manifest intention of the court. There is no suggestion before me that Smart J. was asked to order double costs, and there is no basis upon which it could be argued that he intended to do so.
[14]         Nor is this a situation such as that dealt with by Mr. Justice Burnyeat in GC Parking Ltd. v. New West Ventures Ltd. et al, 2004 BCSC 1700, 9 C.P.C. (6th) 245, where after an order awarding costs on Scale 3 against the defendants was made, the order entered made no reference to costs as the plaintiff specifically advised the defendants that it intended to make further submissions respecting an alleged entitlement to double costs. In that circumstance, Burnyeat J. held at para. 17 that:
[17]      The court can be functus officio where the entered order accurately deals with matters which were dealt with in the Reasons for Judgment but retain jurisdiction to deal with matters which were not set out in the entered order but which were dealt with in the Reasons for Judgment. Bavelas v. Copley, [2000] B.C.J. (Q.L.) No. 523 (B.C.S.C.) dealt with an order entered with respect to liability and damages but not with respect to costs. Drost J. held that the entry of the order rendered the court functus offico “except with respect to the issue of costs” (at para. 20).
[15]         While I respectfully agree with this statement by Burnyeat J., in the case before me, the entered order reflected the disposition of costs as set out in the reasons for judgment.
[16]         However, in Smart v. McCall Pontiac Buick Ltd., 2001 BCSC 467, [2001] B.C.J. No. 682, special costs were awarded to the plaintiff in a written judgment, and an order was entered providing for special costs. An application was then brought by the plaintiff for double costs based upon an offer to settle made by the plaintiff. Mr. Justice McKinnon reasoned that despite the entered order, he could hear the plaintiff’s application for double costs arising from the defendants’ failure to take advantage of an offer, which was substantially below the amount awarded, as he was unaware of the offer to settle and unentitled to know about it when delivering his reasons for judgment.
[17]         I am unable to distinguish the factual underpinnings in Smart from those in this case. Despite the entry of the order in this case, based upon the principle of judicial comity discussed in Re Spruce Hansard Mills Ltd., [1954] 4 D.L.R. 590, 34 C.B.R. 202, I find that I am obliged to hear the defendants’ application for double costs.
 

ICBC Projects Nearly $1Billion in Profit From 2013-2016 ; Government Profit Scoops to Continue

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It’s that time of year again.  With the BC Government’s Budget also comes ICBC’s 2014-2016 Service Plan.  As always, these documents give insight into the actual and projected financial health of ICBC.
ICBC is projecting nearly $1 Billion in profits from 2013-2016 and the Government plans to scoop an average of $160 Million annually over this period.
The below excerpt is from the Budget:
Insurance Corporation of British Columbia: ICBC’s net income is forecast to average
$214 million annually over the fiscal plan period. The outlook assumes average annual
growth of 1.7 per cent in the number of insured vehicles and a 4.0 per cent average
annual increase in claims costs. Over the fiscal plan period, ICBC is forecast to remit an
annual average $160 million of its excess Optional insurance capital to the consolidated
revenue fund to support core government services.
Here are the details of ICBC’s projected financial performance over this period:

 

$120,000 Non-Pecuniary Assessment for Vestibular Injury

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Reasons for judgement were released last week by the BC Supreme Court,  New Westminster Registry, assessing damages for chronic vestibular issues following a motor vehicle collision.
In last week’s case (Reynolds v. M. Sanghera and Sons Trucking Ltd.) the Plaintiff was involved in a 2009 collision.  The Defendant’s tractor trailer rolled down a hill, unoccupied, colliding with the Plaintiff’s vehicle.  The plaintiff suffered a variety of soft tissue injuries along with vestibular dysfunction.  In assessing non-pecuniary damages at $120,000 Mr. Justice Davies provided the following reasons:
[52]         Mr. Reynolds suffered serious and debilitating injuries in the collision, which have had a profound impact upon his enjoyment of life. The most serious of those injuries are the injuries to his neck and the vestibular injuries he suffered which separately or in tandem have caused fear of further injury from rapid movement, migraine headaches, anxiety, fear of driving and other travel, and sleeplessness. The injuries are still unresolved and will likely continue to affect all aspects of his enjoyment of life.
[53]         I accept the evidence of the lay witnesses that prior to the collision Mr. Reynolds was a man of almost boundless energy and enthusiasm for life. While he still tries hard to work in his business and does so with some success, his enjoyment of his work is now compromised by his medical conditions caused by the collision. His life is now far more one-dimensional than before, with work and the energy required to continue with his business now dominating all other aspects of life for which he now has both less energy and time because of the toll that simply working now exacts.
[54]         As to the prognoses for improvement in future, Dr. Underwood opined that it is extremely guarded. Dr. Stevens concluded that it is highly unlikely that Mr. Reynolds will return to his pre-collision state. She also stated that Mr. Reynolds downplays his symptoms.
[55]         Although I consider the award for non-pecuniary damages suggested by the defendant to be inordinately low, I also do not agree with Mr. Arnold’s submission that an award of $150,000 is appropriate in this case. In my view, the injuries suffered by Ms. Felix which resulted in a non-pecuniary damage award of $200,000, and by Ms. Cantin which resulted in a non-pecuniary award of $150,000, were more serious and debilitating than those suffered by Mr. Reynolds. They involved more serious physical injuries requiring surgery, and more severe psychological problems in the case of Ms. Felix, and more cognitive and psychological problems in the case of Ms. Cantin.
[56]         In all of the circumstances I find that an award of $120,000 will appropriately compensate Mr. Reynolds for his past, present and future pain and suffering and loss of enjoyment of life. That award recognizes the impact of the debilitating effect of the neck injury suffered by him and the related dizziness and vertigo that are similar to those suffered by Mr. Moukhine and Mr. Yang, both of whom were awarded $90,000, but also allows compensation for the debilitating effects of his past, present and future mood and anxiety disorders and the sleeplessness which has so dominated his life since the collision and will likely continue.