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$95,000 Non-Pecuniary Assessment for Permanent Knee Injury Likely Requiring Replacement

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 52 Comments on $95,000 Non-Pecuniary Assessment for Permanent Knee Injury Likely Requiring Replacement

Adding to this site’s database addressing non-pecuniary damages for knee injuries, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In the recent case (Majchrzak v. Avery) the Plaintiff was injured in a 2007 motorcycle collision when the Defendant’s vehicle failed to yield the right of way.  The Plaintiff suffered a knee injury which continue to pose problems at the time of trial and likely would need full replacement in the future. In assessing non-pecuniary damages at $95,000 Madam Justice Brown provided the following reasons:
[81]         I consider the following factors relevant in this case:
(a)      Age of the plaintiff: Mr. Majchrzak was 51 years old at the time of trial. The evidence establishes that he will likely suffer some measure of pain for the remainder of his life.
(b)      Nature of the injury: Mr. Majchrzak suffered grade 2 chondromalacia and post-traumatic arthritis from the impact of the accident. His knee is permanently damaged, and it is likely that he will require knee replacement, although it is unclear when that will be. He also suffered minor injuries and bruising to his left hand and back that resolved uneventfully.
(c)      Severity and duration of pain: Almost six years post-accident, the plaintiff continues to suffer pain daily. While he has been able to work through the pain, by doing stretching exercises, icing his knee and taking medication, I have concluded that he has endured much pain doing so. Indeed, he is now retraining to work in a less physically demanding position.
(d)      Disability: The plaintiff has a permanent impairment of his physical capabilities.
(e)      Emotional suffering: Dr. Raffle and Mrs. Majchrzak both gave evidence that Mr. Majchrzak has suffered some measure of depression and anxiety caused by chronic pain and his inability to work and provide for his family.
(f)       Loss and impairment of life: Mr. Majchrzak has permanent injuries that require him to leave what he described as his “dream job”. Furthermore, many of his non-work activities, such as ballroom dancing with his wife, sports activities with his children, and maintenance of his home have been affected.
[82]         After both reviewing the authorities and considering the specific factors in this case, in my view, an appropriate award for the plaintiff is $95,000.

"Chandi is Binding" Registrar Allows Interest on Disbursement Claim

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One of the developing areas of law relates to whether interest charged on disbursements are recoverable under the BC Supreme Court rules.  The BC Court of Appeal may weigh in on the subject but until that time, useful reasons for judgement were released noting that interest on disbursements can indeed be recovered.
In this week’s case (Franzman v. Munro) the parties could not agree on the reasonableness of many disbursements incurred in a personal injury claim which totaled approximately $90,000.  The interest for financing these disbursements came to over $5,000.   Although there was mixed success on some of the claimed disbursements the Court noted that the interest charged was a fairly claimed item.  In reaching this conclusion Master McDiarmid provided the following reasons:
[27]         I find that it was necessary for the plaintiff to incur significant disbursements in order to properly pursue her claim. I find as well that the arrangement she made with her lawyer was both necessary and proper.
[28]         We are constantly hearing how difficult it is for ordinary people to afford access to our courts. The fee agreement entered into between the plaintiff and her lawyer facilitated her having access to the courts. The interest rate charged by the law firm, that being essentially the interest it was paying on its operating line of credit (a way in which many law firms finance their operations) is reasonable.
[29]         Defendant’s counsel advised that Chandi is under appeal. Plaintiff’s counsel pointed out that the plaintiff has no ability to control whether that appeal will ever proceed, and the plaintiff should not be restricted from executing on its judgment, including costs, while awaiting the unknown result of an appeal.
[30]         Savage J., at paras. 35 and 36, gave a succinct and accurate analysis of comity and the principles enunciated in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (BCSC), as follows:
[35] In Re Hansard Spruce Mills, Wilson J., as he then was, was asked to give a ruling that was at direct variance with the ruling of a fellow judge of the Supreme Court. In refusing to contradict the ruling of a judge of the same court, Wilson J. said:
The Court of Appeal, by overriding itself in Bell v. Klein, [1954] B.C.J. No. 152, has settled the law. But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.
Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:
(a)        Subsequent decisions have affected the validity of the impugned judgment;
(b)        it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c)        the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.
Re Hansard Spruce Mills at 592.
[36] Re Hansard Spruce Mills has been cited in over 460 cases (and counting). It has a lengthy history of application in British Columbia courts and has been described as the “dominant approach” to judicial comity in Canada: Debra Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2007) 32 Man. L.J. 135 at 160.
[31]         Chandi is binding on me. No restriction is placed on the award of interest as part of my assessment of costs. The interest claimed is both necessary and proper, and is claimed in a reasonable amount. It is allowed in full as claimed.

$35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized. 104 Comments on $35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

Reasons for judgement were released last week by the BC Supreme Court, Smithers Registry, assessing damages for injuries sustained in an assault.
In last week’s case (Abbott v. Glaim) the Plaintiff and Defendant were together at a house party when they became involved in a brief verbal confrontation.  Although the Court was presented with competing versions of what actually transpired the Court ultimately accepted that following the verbal exchange the Defendant “took both hands and pushed (the Plaintiff) backwards off the deck to the concrete pad below”.
The Plaintiff suffered various injuries including a fractured wrist.  In assessing non-pecuniary damages at $35,000 Mr. Justice Skolrood provided the following reasons:
[133]     It will be apparent from the above that I accept Joyce’s evidence that she was pushed down the stairs by Lucy…
[137]     The most significant injury suffered by Joyce was to her left wrist. An initial x-ray of the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius in her left wrist. A cast was applied which she wore until May 19, 2006.
[138]     Joyce underwent physiotherapy treatments for her wrist beginning in early April 2006. She attended 22 physiotherapy sessions over the course of approximately one year. Joyce testified that her wrist continued to cause her pain and discomfort for a considerable period of time, particularly given that her work as a dental hygienist requires her to use both hands and wrists extensively. Joyce described her left hand as the “mirror hand” in that, because she is right handed, the left hand does things like holding the mirror and pulling the patient’s cheek back while the right hand uses the dental instruments.
[139]     As a result of her wrist injury, Joyce was away from work until June 2006. She initially tried to return to work on a full time basis but quickly scaled back from eight to six hours a day because of ongoing difficulties. It was not until August of 2007 that she was able to return to working an eight hour shift.
[140]     In addition to her wrist injury, Joyce testified that she began to experience regular headaches following the incident. Sometime in 2008, she attended a work seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her to consider whether her headaches were the result of a TMJ disorder. She spoke to both her doctor and her dentist about this and she was sent for testing.
[141]     On February 11, 2009, she underwent a CT scan of her head which revealed “focal degenerative activity in the left mandibular condyle.”  The imaging report further notes: “This is an unusual location and raises the possibility that this could be a result of previous trauma.”
[142]     Joyce was examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her symptoms to be consistent with trauma to her TM joints, “particularly an acceleration/deceleration type of an event that would illicit some soft tissue strain on the TMJ supporting structures and lead to a subsequent inflammatory response.”
[143]     However, Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating the incident so he could not conclusively state the cause of Joyce’s symptoms.
[144]     Joyce was prescribed both a night and a day guard to wear in her mouth which are intended to relieve pressure on the TMJ. Joyce testified that she wears the guards and that they have been useful in reducing the frequency of her headaches.
[145]     One other consequence of the incident according to Joyce has been an increased sense of anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant that she continues to take as well as Ativan to deal with the panic attacks. Joyce testified that she no longer takes the Ativan as the frequency of her panic attacks has diminished.
[146]     Joyce testified to the significant emotional upset and embarrassment she experienced as a result of the incident, the effects of which continued to be felt at the time of trial. She said that she strives to be a role model for her 17 year old daughter, and in the community generally, and that it was traumatizing to be involved in an incident of this nature…
[156]     Taking account of all of the evidence and considering the factors articulated by the Court of Appeal in Stapley I award Joyce $35,000 under this head.
 

Vehicle Lessor Liability Limit Over and Above That of Motorist

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UPDATE – November 7, 2014 – the below decision was overturned in reasons released this week by the BC Court of Appeal
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Important reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessor’s when their vehicles are involved in an at-fault collision.
Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor’s to $1,000,000 of liability when their vehicles are involved in a collision.  The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.
In this week’s case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision.  The quantum was agreed to at $1.6 million dollars.  The ICBC insured defendant paid out the policy limits of $1 million.    The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million.  Mr. Justice Bowden disagreed finding a lessor’s exposure, while capped at $1 million, is over and above damages collected from other liable parties. In reaching this conclusion the Court provided the following reasons:
[34]         As a lessor, under s. 86(1.2), Honda Canada is vicariously liable as a joint tortfeasor. Without the limitation in s. 82.1, it would be liable, together with the lessee, for all or part of the damages of $1,600,000. However, section s. 82.1 places a $1,000,000 limit on that liability such that Honda Canada’s portion cannot be greater than $1,000,000.
[35]         In my view, the payment of $1,000,000 on behalf of the lessee does not reduce the liability of Honda Canada to zero. It is simply a payment by one joint tortfeasor towards the total liability of the jointly liable parties. By virtue of s. 86(1.2) of the MVA, both the driver, Mr. Chen, and Honda Canada are jointly liable for the damages of $1,600,000. Pursuant to s. 82.1, Honda Canada’s portion of that liability cannot exceed $1,000,000. Of the total liability, $1,000,000 has been discharged by ICBC on behalf of the lessee, but Honda Canada remains liable as a joint tortfeasor, for $600,000.
[36]         This result is consistent with the plain meaning of s. 82.1 of the I(V)A which limits the liability of Honda Canada to $1,000,000. Its portion of the joint liability will not exceed $1,000,000. In my view, the combined effect of s. 86(1.2) of the MVA and s. 82.1 of the I(V)A is to expose a lessor, like Honda Canada, to liability as a jointfeasor, of $1,000,000, but no more. Thus, in this case, if the driver/lessee had no insurance coverage, the lessor would be liable for the amount of $1,000,000. On the other hand, if the insurance coverage of the driver/lessee resulted in a payment of $1,600,000, then no amount would be payable by the lessor, Honda Canada.

"Outrageous" Behavior Still Not Enough to Overcome Expert Witness Immunity

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Although the  UK Supreme Court has recently stripped away at expert witness immunity the BC Courts appear reluctant to do so.  Reasons for judgement were released last week by the BC Court of Appeal addressing this.
In last week’s case (Lower v. Stasiuk) the parties were involved in a family law proceeding.  In the course of the proceeding a psychiatrist provided evidence who was found to be an “advocate” and whose actions were deemed “outrageous“.  Following this the Claimant sought to add the psychiatrist as a party and to seek special costs against him.  Both the BC Supreme Court and Court of Appeal refused to allow this noting that expert witness immunity guarded against such a remedy.  The BC Court of Appeal provided the following reasons:
[69]         It is not clear to me that the exception to witness immunity articulated in Phillips properly applies to a witness in Dr. Hay’s position.
[70]         Secondly, as noted by at least two of the justices in Jones, it has not been determined that Phillips was correctly decided.  Dr. Hay argues that Smith J. misinterpreted the Symphony case, on which he relied, and points out that in Symphony, the claim for third party costs (which was rejected by the Court of Appeal) was made on the basis that the third-party company had funded and been the “driving force” behind the defence (at 149) ? akin to maintenance.  Mr. Justice Smith expressly acknowledged that one of the bases for the claim against the third party in Symphony was that it was maintaining the action (at para. 60).
[71]         Thirdly, Dr. Hay suggests that adopting the exception to witness immunity from Phillips creates uncertainty about the boundaries of the immunity.  The evidence of the expert witness in Phillips was rejected on the basis that he breached his duty to the court by failing to view the issues objectively and straying into advocacy (see Smith J.’s reasons for judgment from the hearing in which the expert’s evidence was considered:  Phillips v. Symes (No. 1), [2004] EWHC 1887 (Ch) at para. 94).  Dr. Hay asks how an expert would know in advance what conduct could expose him to a claim for costs.
[72]         All of these reasons suggest caution in adopting the exception to witness immunity as has apparently been done in the U.K.
[73]         Another reason not to follow Phillips is that the trial judge did not have the opportunity to consider it and this Court does not have his decision on the question to review.  Were we to embark on such a change in the law at first instance, Dr. Hay’s only opportunity for an appeal would be with leave of the Supreme Court of Canada.  It is more appropriate that such a change be considered in the normal manner at first instance by a justice of the B.C. Supreme Court, followed by review by this Court.
[74]         I find no basis to interfere with the trial judge’s conclusion that witness immunity bars the father’s application to add him as a party for the purpose of assessing special costs.
[75]         It follows that I would not accede to this ground of appeal.

ICBC Opposes Translator Fees on Basis of Law Firm Advertising

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Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the reasonableness of private translator fees incurred by a lawfirm advancing a personal injury case.
In this week’s case (Jin v. Caleca) the Plaintiff, whose first language is Mandarin and whose “ability to communicate in the English language is very limited” hired a personal injury lawfirm to advance her case.  The firm hired a translator which assisted in communicating with the client.  When the case settled ICBC challenged this disbursement arguing that based on the law firm’s advertisements ICBC should not be on the hook for this expense.  District Registrar Cameron disagreed and ordered that the disbursement be paid. In doing so the Court provided the following reasons:
[4]             The Defendants do not take any issue with the decision by the law firm to retain a translator to assist the lawyers in the firm to fully and effectively communicate with the Plaintiff.  It is conceded that this was a proper or necessary disbursement.
[5]             Further, the Defendants do not take any issue with the reasonableness of the translation fees claimed in the sum of $1,122.27. Rather, they ground their objection to paying this disbursement on their interpretation of the print advertising done by the law firm aimed at attracting new clients to the firm.
[6]             There is a considerable amount of affidavit evidence before me, but the matter resolves down to this:  at the time that this retainer agreement was entered into on February 5th, 2010, the law firm web site was silent as to what obligation, if any, a client would have to pay the cost of translation fees.  At the time the web site provided that the law firm offered services in a number of foreign languages.
[7]             Approximately one year later, in February 2011, the law firm web site advertisement was changed and it said that translator fees are provided “at no cost to you”. Based on this change to the web site advertising, Ms. Hall, on behalf of the Defendants, submitted that there should be read into the fee agreement between the Plaintiff in this case and the law firm a provision that she would be held harmless for any translation fees and as such she ought not to be able to recover them on this assessment.
[8]             With respect, I do not agree. While I will not express a view as to whether or not there ought to be any recovery of a translation disbursement incurred for a client who retained the law firm after the change to the advertisement in February 2011, it is common ground that in February 2010 when the subject retainer was entered into there was no term in the retainer agreement that held the Plaintiff harmless for any translation fees.
[9]             There was no evidence before me to support any amendment to the existing retainer agreement between the Plaintiff and her law firm and based upon the concessions I have noted that were made by the Defendants, the disbursement is allowed.

Inadequate Notice of Application Criticized By the BC Supreme Court

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Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed. 
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.

Fault For Right Hand Turning Vehicle Striking Cyclist Discussed by BC Supreme Court

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision involving a right hand turning vehicle and a cyclist attempting to pass the vehicle on the inside lane.

In this week’s case (Nelson v. Lafarge Canada Inc.) the Plaintiff was “cycling hard and fast alongside the Truck as the two approached the Intersection in tandem.  Mr. Nelson’s speed exceeded the Truck’s and it is apparent he was overtaking it on the right as the Truck turned onto Nanaimo.”  There was video of the actual collision presented in evidence and it demonstrated that the Truck driver “did engage the Truck’s right signal prior to executing his right turn onto Nanaimo.  I accept that he did so well before he arrived at the Intersection after the light had turned green.”
As the truck turned, on a still green light, a collision occurred.  Madam Justice Dickson found both parties to blame for the collision with the cyclist bearing 65% of the fault.  In reaching this concluding the Court provided the following reasons:
[77]         I agree with counsel for the defendants that Mr. Conarroe was the dominant driver in the circumstances of this Accident.  He was proceeding on a green light in the appropriate lane and had signaled his right turn well in advance.  He had also looked around as he turned onto Nanaimo and, generally speaking, was entitled to assume that others would obey the rules of the road.  Nevertheless, the presence of cyclists in the adjacent curb lane was both proper and predictable.  In addition, I have found Mr. Conarroe could and should have kept a more vigilant look-out in the period leading up to the right turn to ensure that it could be safely made.
[78]         Had Mr. Conarroe kept a more vigilant look-out after he stopped for the red light on Hastings and before he started his right turn he would have observed Mr. Nelson cycling hard and fast in the curb lane behind or beside him.  It would have been apparent that Mr. Nelson was focusing straight ahead and might attempt to overtake on the right as the two approached the green light, despite the riskiness of such conduct.  Armed with this knowledge, Mr. Conarroe could have avoided the Accident by waiting to commence his turn in the Intersection until it was clear either that Mr. Nelson had abandoned the unfolding attempt to pass on the right or completed it successfully.  His failure to do so was a failure to take reasonable care and a contributing cause of the Accident.
[79]         Mr. Nelson also failed to take reasonable care for his own safety, which failure was a contributing cause of the Accident.  Although, based on Jang, I find that the curb lane was a through lane for cyclists I also find it was unsafe for him to attempt to pass the right-turning Truck when there was little, if any, margin for error associated with such an attempt.  As noted, this was a breach of s. 158(2)(a) of the Act.  It also fell well below the standard of care to be expected of a reasonably competent cyclist in all of the circumstances.
[80]         Mr. Nelson suffered serious harm and damage as a result of the Accident.  The damage has two proximate causes:  the negligence of both parties.  In these circumstances, liability must be apportioned between the two.
[81]         In assessing the respective fault and blameworthiness of the parties I must evaluate the extent or degree to which each departed from the standard of care owed under the circumstances.
[82]         In balancing blameworthiness, I find Mr. Nelson’s conduct constituted a significant departure from the requisite standard of care which created a risk of serious harm.  He was aware of the Truck travelling eastbound on his left but focused only on his own path forward and did not check for an activated right turn signal, which was there to be seen.  Instead, he tried to pass the Truck on the right without first determining whether such a movement could be made safely.  In my view, such conduct was very careless.
[83]         Mr. Conarroe’s conduct also constituted a significant departure from the requisite standard of care, taking into account the vigilance reasonably to be expected of a professional truck driver.  He waited far too long to look carefully and thoroughly around himself as he prepared to turn right.  This is particularly true given his knowledge of the Truck’s many blind spots.  In consequence, Mr. Conarroe was unaware of the fact that Mr. Nelson was cycling hard and fast in the adjacent curb lane after the light changed colour at the Intersection.  This failure was not momentary or minor, and it carried the risk of foreseeable harm of considerable magnitude.  In my view, however, it was not of the same degree as Mr. Nelson’s failure to take reasonable care for his own safety in attempting to pass a right-turning Truck on the right.
[84]         In all of the circumstances, I conclude that 65% of the fault for the Accident should be borne by Mr. Nelson and 35% should be borne by Mr. Conarroe.

Single Vehicle Leaving Roadway With No Reasonable Explanation Sufficient to Prove Negligence

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Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway.  The Plaintiff had no recall of how the collision occurred.  The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence.  Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred.  In so concluding the Court provided the following reasons:
[30]         Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability.  See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident.  In such cases, the plaintiff bears the burden of proof.  The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized:  see paras. 23-24.
[31]         However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident.  The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane.  The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction.  While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived.  The only reasonable inference to draw is that the defendant was driving while drunk.
[32]         I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant.  The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway.  There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash.  The Plaintiff, the sole survivor, had no recall of what occurred.   The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
[100]     The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash.  The posted speed limit was 110 kph.  The vehicle was travelling in excess of 130 kph at the time of the accident.  As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness.  I accept this evidence.  Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention. 
[101]     In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8.  The defendants led no evidence to the contrary.  

2012 ICBC Doctor and Lawyer Billings Published

Written by admin on . Posted in Uncategorized.

It’s that time of year again.  ICBC has now released their annual Statements and Schedules of Financial Information for 2012.  This is my 7th year highlighting this information.  You can access the following previous years information at the following links:
2011
2010
2009
2008
2007
As previously discussed, this report highlights the billings of Suppliers of Goods and Services which includes doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends you to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
ICBC routinely uses a handful of doctors to perform these independent exams.  A quick glance reveals that some physicians bill well into the six digit range annually for these services.
Another provider of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract(known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.