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Court of Appeal Orders Return of Funds Paid After New Trial Ordered

Written by admin on . Posted in Uncategorized. 49 Comments on Court of Appeal Orders Return of Funds Paid After New Trial Ordered

What happens when a litigant sues and wins, collects part of the judgement, but then a new trial is ordered after appeal?  Reasons for judgement were released by the BC Court of Appeal last week addressing such a situation.
In last week’s case (Camaso Estate v. Saanich (District)) the Plaintiff estate successfully sued for damages where the trial judge found a police officer was grossly negligent for fatally shooting the ‘disturbed’ plaintiff.  Damages of over $300,000 were assessed.  The Defendant appealed and pending appeal obtained an order for a partial stay upon the defendant paying the sum of $119,456.20 to the plaintiff.  The Defendant successfully appealed and obtained an order for a new trial.  The Defendant sought return of the $119,456.  The Plaintiff opposed arguing the Court of Appeal was functus and had no ability to make such an order.  BC’s High Court disagreed and provided the following reasons ordering the return of the funds:
[10]         We do not consider that we are being asked to revisit our order determining the appeal or to adjudicate upon any issue that should have been addressed at the hearing of the appeal.  We are being asked to give a procedural remedy arising out of a process that was initiated and ran its course in this court alone.  The trial court gave a money judgment without terms as to payment.  Terms of payment of the judgment were addressed only in this court in the form of a stay of execution application brought by the appellants under s. 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77.  We are not being asked to rehear or to reconsider any aspect of this appeal.  No variation of our order allowing the appeal is sought.  This is merely a housekeeping matter that arises out of the proceedings in this court.  Therefore, the doctrine of functus officio has no application. 
[11]         In a similar case, this court determined that the court has the power to make the kind of order sought by the appellants in the present case: Vaillancourt v. Molnar, 2004 BCCA 384.  In Vaillancourt, the court reduced the amount of a jury award for damages for personal injury with the result that the appellant/defendant, pursuant to a pre-appeal agreement between the parties, had paid the respondent about $72,000 more than she was entitled to receive.  The court relied on s. 9(8) of the Court of Appeal Act: 
[6]        We agree with counsel that this Court has jurisdiction to make an order for repayment of the overpayment. In that regard, we need look no further than s. 9(8) of the Court of Appeal Act, R.S.B.C. c. 77:
(8) For all purposes of and incidental to the hearing and determination of any matter and the amendment, execution and enforcement of any order and for the purpose of every other authority expressly or impliedly given to the Court of Appeal,
(a) the Court of Appeal has the power, authority and jurisdiction vested in the Supreme Court …
[7]        In the result, we conclude that it is appropriate to make the order sought by the appellant, namely, that the respondent shall pay to the appellant the amount of the excess payment, plus interest to the date of repayment.
[12]         See also Hoskin v. Han, 2005 BCCA 483.
[13]         In our opinion, the court retains the power under s. 9(8) to make the order sought, it being a procedural remedy incidental to the appeal and the stay of execution order.
[14]         There will be an order that the respondents forthwith pay to the appellants the sum of $119,456.20. 

Plaintiff Denied Costs for Having No Sufficient Reason to Sue in the Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

One of the more difficult fact patterns to predict the outcome of is when will a Plaintiff be granted costs when they sue in the BC Supreme Court but are awarded damages below $25,000 (the monetary jurisdiction of the Provincial Court in BC).  You can click here to read archived decisions addressing this.  Adding to these, reasons for judgement were released this week considering such a scenario.
In this week’s case (Akbari v. ICBC) the Plaintiff was injured in a collision caused by an unidentified motorist.  He successfully sued ICBC and was awarded damages of just over $13,000.  Following this the Plaintiff sought costs of $17,000.  Madam Justice Baker denied this finding the Plaintiff had no sufficient reason to sue in Supreme Court. In reaching this conclusion the Court provided the following reasons:
[16]         I am not persuaded that there was sufficient reason to bring this action in Supreme Court.  As the plaintiff submits, the issue of liability was the primary issue at trial.  The Provincial Court is an entirely appropriate forum for determining that issue, the outcome of which largely depended on an assessment of the credibility of the witnesses.
[17]         Ms. Berry of ICBC had no personal knowledge of the circumstances of the accident.  I can surmise that questions put to her on discovery may have related to contact by ICBC representatives with one of the plaintiff’s witnesses, Mr. Nahun Chinchilla, whose testimony I rejected at trial as incredible and unreliable.  Mr. Chinchilla voluntarily contacted both the plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be interviewed by plaintiff’s counsel prior to trial, so it was not necessary to utilize the Supreme Court Rules to compel his cooperation.
[18]         I am not persuaded that any documents and witness statements provided by the defendant to the plaintiff during the course of pre-trial preparation would not have been supplied by the defendant whether the action had been brought in Supreme Court or in Provincial Court.
[19]         I am not persuaded that there was any reasonable prospect that the plaintiff’s total damages would exceed $25,000.  The special damages and past loss of income were known.  The only head of damages involving uncertainty was non-pecuniary damages. The only medical evidence presented at trial was a report from Mr. Akbari’s family doctor, dated June 2, 2011.  In my view, it should have been obvious to the plaintiff and his counsel, after considering that report, that an award in the range of $25,000 was highly unlikely.
[20]         The report and the opinions expressed in it were sufficiently non-controversial that Dr. Rai was not required to attend for cross-examination.  In Dr. Rai’s opinion, Mr. Akbari suffered soft tissue injuries – described by Dr. Rai as “tendonious strain” affecting Mr. Akbari’s left calf, knee and thigh – from which he had recovered in 8 to 10 weeks.  Mr. Akbari was off work for two weeks, but it was during the Christmas holidays and he had planned to take some vacation during that period in any event.  The injuries caused little disruption to Mr. Akbari, only temporarily interfering with his participation in pick-up soccer games, and his weight-lifting routine at the gym.
[21]         In the plaintiff’s written submissions regarding costs, it was suggested that the concluding paragraph of my trial Reasons, in which I stated that I was not aware of any reason why the plaintiff should not have his costs on Scale B, was a determination of the issue.  That is not correct.  Unless a defendant invokes Rule 14-1, a plaintiff is normally entitled to costs.  Once the Rule is invoked, then the court must consider whether there was sufficient reason to bring the proceeding in the Supreme Court.
The plaintiff shall have disbursements only. 

MRI Disbursement Allowed Where Expense Incurred for Dual Purposes

Written by admin on . Posted in Uncategorized. 60 Comments on MRI Disbursement Allowed Where Expense Incurred for Dual Purposes

Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, allowing the costs associated with a private MRI to be recovered as a disbursement in a personal injury claim.
In last week’s case (Wu v. Ly) the plaintiff commissioned a private MRI following a motor vehicle collision.  This was done following a recommendation of her treating physician.  In allowing this disbursement to be recovered District Registrar Cameron provided the following brief reasons:
[7]             In Colasimone v. Ng and Mo, 2007 BCSC 1179, Madam Justice Gropper was dealing with an appeal of a decision of District Registrar Blok (as he then was) that allowed the cost of MRI scans as a taxable disbursement.  Her Ladyship notes:
In his reasons for judgment Registrar Blok describes MRI scans as presenting a “special problem in considering party and party bill of costs.”  He notes that MRI scans can be used for either or both treatment and litigation and sometimes the line is blurred. The Registrar concludes:
I am satisfied that a sufficient litigation purpose was shown on the evidence before me such that the disbursement was reasonably incurred, necessary and proper in a litigation purpose.  Specifically the purpose here was for Mr. Maryn to make a decision about the impending trial.
Registrar Blok has considered the “special problem” that MRI scans present in his decision of Ward v. W.S. Lessing Ltd., 2007 BCSC 877.  He comments that the cost of MRI scans have been allowed and disallowed as a disbursement.  There are cases which support either position, but as the Registrar notes, each turns on its facts.  The Registrar continues:
If an MRI was performed for the purposes of treatment, then it may be claimed as an item of special damages.  If it is used as an aid in the litigation process, then it is properly claimed as a disbursement on a party and party bill of costs.  Those are the typical questions that are dealt with when MRIs are at issue.
[T]here must be some judgment applied, perhaps with medical input, in considering the necessity for the procedure in a litigation context, given the injuries involved, the likely damages, what the MRI is expected to achieve from a litigation standpoint and so on.
[8]             In paragraph 22 of her decision, Her Ladyship concludes by saying, having reviewed all of the evidence:
Thus the scans were for two purposes:  to determine the extent of the plaintiff’s injuries and for treatment purposes.
[9]             In the result Madam Justice Gropper upheld the Registrar’s decision, finding he did not clearly err in finding that the disbursement related to MRI scans was reasonably, necessarily and properly incurred for the purposes of the litigation.
[10]         In this case there is evidence before me that the impetus for the MRI was from Dr. le Nobel, who was a treating physician for the Plaintiff and who was continuing to suffer ongoing pain and discomfort some four years following the motor vehicle accident.  Because of Dr. le Nobel’s concern about her continuing symptoms and to better assess them, he recommended that an MRI examination be done.
[11]         Mr. Wiseman was involved as counsel in the process and pointed out that the cost for the MRI examination was one that was paid directly by him.  He was concerned to have the best evidence available to serve as a foundation to most reliably assess the Plaintiff’s claim for damages. I am satisfied that this is one of those cases where the MRI was obtained for two purposes being  for diagnosis and also to assist the Plaintiff and her counsel in better evaluate and present her claim for damages.
[12]         Mr. Chalcraft did not take any issue with the cost of the MRI other than to object to the claim for interest.  Mr. Wiseman abandoned the claim for interest, and as a result the MRI disbursement is allowed as claimed in the sum of $1,595.

Riding In a Towed Vehicle Found Negligent by BC Supreme Court

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on Riding In a Towed Vehicle Found Negligent by BC Supreme Court


In a case involving a comedy of mishaps leading up to a motor vehicle incident, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing whether it is negligent to ride in a vehicle that is being towed.
In last week’s case (Tabor v. Bridge) the Plaintiffs were involved in a series of mishaps which ultimately led to them having their vehicle towed.  Despite the prohibition of riding in a vehicle that is being towed the Defendant tow truck driver allowed the Plaintiff’s to ride in their own vehicle.   In the course of the trip the tow truck’s dolly system broke causing the towed vehicle to sway back and forth causing injuries to the Plaintiff’s.  The Defendant was found negligent for failing to properly assemble the dolly system.  The Court went on to find that the Plaintiffs were also contributorily negligent for riding in a vehicle that was being towed. In finding them 25% at fault for this decision Mr. Justice Cohen provided the following reasons:
[34]         Section 7.07(6) of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 provides that no person shall tow a motor vehicle if there is a person in or on the towed motor vehicle.  There is no doubt that provision was breached in this case.  However, the law provides that mere breach of a statute, standing alone, does not constitute negligence per se: see Van Tent v. Abbotsford (City) 2013 BCCA 236…
[46]         In the case at bar, I find that the plaintiffs appreciated the risk associated with them riding together with their children as passengers in the Ford Explorer while it was being towed.  I also find that they accepted the risk not only because of the assurance they received from the defendant driver as to their safety, but also because they considered this option in all of the circumstances to be more convenient than waiting at the BMW site for a cab to take them home, especially because once they were back at the terminal they could ask the superintendent to arrange a cab to drive them to Surrey at no cost to them.
[47]         In my opinion, regardless of what the plaintiffs were told by the defendant driver about their safety, or for that matter the fact that the police observed the situation and did nothing to stop it, they nevertheless had an obligation to assess the risk and act reasonably.  The fact that the defendant driver told them it was a safe option did not mean that the risk associated with the situation they accepted was unforeseeable.  Thus, I am satisfied that to some degree the plaintiffs were to blame, but I find that the defendant driver was at fault to a much greater degree.
[48]         I find that the defendant driver knew full well that it was against the law to permit persons to ride in a vehicle being towed.  His responsibility in this regard was not removed by the fact that he believed the police would not penalize him in the circumstances.  In addition, he was completely in control of the situation in terms of allowing the plaintiffs and their children to ride in the Ford Explorer while it was being towed.  He could have easily refused them this option or have offered to take two of them at a time back to the terminal in his tow truck.
[49]         When I balance the relative degrees of fault, I find that liability should be apportioned 25% to the plaintiffs and 75% to the defendant driver.

Private MRI Disbursement Disallowed Due To No Evidence of Urgency

Written by admin on . Posted in Uncategorized.

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, disallowing recovery of the costs of a private MRI in a personal injury lawsuit.
In this week’s case (Repmicki v. 616696 BC Ltd) the plaintiff obtained a private MRI in the course of his lawsuit.  At settlement the parties could not agree whether this disbursement was reasonable and brought the matter before the Court.  District Registrar Cameron held that while having an MRI was reasonable, there was no evidence justifying the expense to be privately incurred.  In dismissing the claimed disbursement the Court provided the following reasons:
[5]             While the medical evidence that I was referred to satisfies me that obtaining an MRI examination in this case was a reasonable step to take in the Plaintiff’s interest and to assist with a determination of whether or not there was a causal link to her neck, upper back, and lower back injuries and the motor vehicle accident, I am not satisfied that it was reasonable to incur the additional expense to have the MRI examination done in the private healthcare system.  I may have been persuaded it was reasonable to do so if, in fact, there was evidence that there was going to be an ongoing and significant delay in having the MRI examination done in the public healthcare system, but that evidence was not before me.
[6]             For these reasons, the disbursement will be disallowed.

Physician's Evidence Rejeced for Lack of "An Open Mind" Regarding Collision Related Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases, Uncategorized.

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:
[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:
1.     He took what can only be described as a cursory history from Ms. Sekihara;
2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;
3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;
4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.     he was evasive at times in his oral testimony.
[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.
[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 
[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 
[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 
[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.

"Investigative Stage" Trumps Claim to Litigation Privilege Regarding Quantum of Damages Investigation

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

I’ve previously discussed the difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In this week’s case (Spenst v. Reemeyer) the Plaintiff alleged injury s a result of a motor vehicle/pedestrian incident which occurred in 2010.  In the course of the lawsuit ICBC denied liability on behalf of the motorist.  ICBC refused to produce two ‘investigative reports’ they commissioned arguing these were protected by litigation privilege.  Master Caldwell found the evidence ICBC produced in support of their claim fell short of the mark to obtain the protection of privilege and ordered production of the documents.  After summarizing the legal principles involved Master Caldwell provided the following reasons:
[12]         In short, the determination as to whether litigation is contemplated as a reasonable prospect is not merely subjective and arbitrary but rather must be objective and based upon reasonable information obtained by appropriate investigation.
[13]         What does the evidence before me reveal when viewed in the light of the above tests?
[14]         First, I have absolutely no evidence from that adjuster who apparently had conduct of the file for the first 18 months.  I am not told whether or not any investigations were undertaken during that time as to either the issue of liability or the extent of damages.  Plaintiff’s counsel submitted, and defence counsel did not dispute, that no denial of liability was ever communicated to the plaintiff prior to the delivery of the Response to Civil Claim.
[15]         Second, Ms. Roach notes that the plaintiff retained counsel.  Plaintiffs have a right to obtain legal advice, including legal advice regarding their rights and responsibilities arising out of motor vehicle or personal injury matters. Consultation with counsel is not a direct or even reasonable guarantee that one is on the road to active litigation; the involvement of counsel may well enhance the possibility of resolution short of trial.
[16]         Third, Ms. Roach says that she only handles claims that are being litigated or are likely to be litigated and thus she determined that since the file was transferred to her it would be litigated.  Strangely however, Ms. Roach, in her own correspondence of May 8, 2012 (the day she commissioned the investigations/reports) wrote to plaintiff’s counsel:
To minimize costs, I will work with you to conclude this matter as quickly as possible.  If it is determined that your client is entitled to compensation, I will be prepared to release settlement funds only when the entire claim, including taxable costs and disbursements, has been resolved and the necessary release documentation completed.  I look forward to working with you on this matter.
[17]         At the time Ms. Roach wrote this conciliatory letter referencing concluding the matter, entitlement to compensation and settlement funds in response to a similarly conciliatory letter of introduction from plaintiff’s counsel, action had not yet been commenced, no position on liability had been taken and there is no evidence that any substantive investigation or even basic inquiry had been undertaken regarding any aspect of the plaintiff’s claim.  The mere arbitrary assertion that this file is likely to go to litigation because this adjuster handles only litigation files and she had decided it would go to litigation is not objectively defensible on the evidence before me.
[18]         Fourth, Ms. Roach says that the end of the limitation period was approaching and, by implication, litigation would have to be commenced.  What this assertion fails to recognize is that there is a significant difference between the commencement of an action in order to protect against the expiry of a limitation period and the active conduct of litigation.  In her May 8 correspondence, Ms. Roach expressly confirmed that her letter was not “a waiver or extension of any applicable limitation”.  In order for any legitimate, even-handed settlement discussions to take place, as invited by her letter, it was necessary for plaintiff’s counsel to preserve the plaintiff’s right to claim at law for her alleged injuries in the event that negotiations failed.
[19]         Counsel for the defendant advised in submissions that the investigative reports were obtained not on the issue of liability but rather on the issue of quantum of damages.  There was no evidence in the material to support that submission and counsel failed to indicate why that distinction would make a material difference in regard to the investigation/dominant purpose assessment.
[20]         The evidence before me fails to objectively establish to any certainty that the reports which were commissioned and which are sought by the plaintiff were commissioned for any purpose other than for basic investigation of the plaintiff’s claim.  There is no evidence to indicate that the adjusters had undertaken any type of earlier investigation to determine whether there was a reasonable, objective basis upon which liability should be denied or quantum questioned.  The reports are ordered produced forthwith.

Diminished Homemaking Capacity Damages Awarded Despite Pre-Existing Disability

Written by admin on . Posted in Uncategorized.

If a Plaintiff is vocationally disabled due to a pre-existing condition this does not preclude a court from assessing damages for diminished housekeeping capacity.  This was demonstrated in reasons for judgement released last week.
In last week’s case (Chow v. Nolan) the Plaintiff was largely disabled from a  pre-existing traumatic injury.  The Plaintiff was involved in a 2008 collision which worsened his pre-existing condition.  Although the Plaintiff’s claims for diminished earning capacity were dismissed the Court accepted the aggravations further diminished his abilities to take care of his household and assessed damages for this loss.  In doing so Madam Justice Kloegman provided the following reasons:
[76]         There were two reports from occupational therapists recommending the provision of homemaking services to the plaintiff. The biggest difference between them is that the plaintiff’s expert witness, Ms. Gibson, assumed that the plaintiff would be in need of these services until age 70, 75 or 80. This is not a reasonable assumption in light of the evidence of prognosis. Dr. Chu reported that the plaintiff will return to pre-2008 accident status at some point. Dr. Gill testified that two years is probably too soon to expect recovery to his pre-2008 accident status, but perhaps five years is reasonable.
[77]         In my view, on the totality of the evidence, it would not be reasonable to award the plaintiff for future losses that extend past five years from trial. I accept Ms. Gibson’s list of items which were submitted by the plaintiff as being reasonably expected to incur as a result of the plaintiff’s decrease in function, but they must be restricted to a period of five years. When each of these items is paid for separately, it is much more expensive (almost double), than hiring one person to perform these jobs. Ms. Gibson’s suggestion of using an agency person at a rate of $24 per hour at an annual cost of $22,276.80 ($21,216 plus 5% GST) is the most reasonable course of action.
[78]         This figure should be reduced by 20% to $17,821.40 to reflect reasonable positive contingencies such as not requiring as much assistance with meal preparation, transporting daughter, etc., on those days when the plaintiff feels capable of handling such things himself.
[79]         The present value of $17,821.00 over five years is $14,756.00 per year, for a total of $89,108. I award the plaintiff $89,108.00 for loss of homemaking capacity in the future.

"Genuine Belief" in Entitled Damages Will Not Avoid Formal Settlement Offer Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

In a fairly routine exercise of the Court’s discretion, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to pay the Defendant’s trial costs for failing to best a pre-trial formal settlement offer in a personal injury claim.
In this week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision.  Fault was not at issue.   Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility”  Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.  Six weeks prior to trial the Defendant made a formal settlement offer of just over $121,000.  The Plaintiff sought an award well above this at trial but many of the claimed damages were rejected with the court assessing damages about $25,000 below the formal settlement offer.
The Defendant sought post offer costs and these were granted.  In finding that a Plaintiff’s “honest belief” in entitlement to damages does not avoid the costs consequences intended by the Rules of Court, Madam Justice Fitzpatrick provided the following reasons:
[11]         Mr. Wilson argues that he “genuinely believed” that he had incurred a past and future wage loss because he was unable to work for Taja. With respect, it can hardly be the case that honest belief alone will avoid the intended effect of the Rule. This is similar to my rejection of his honest belief as to disability where that belief was not supported by any medical evidence: Reasons, para. 137. As set out in the Reasons, there were numerous difficulties with Mr. Wilson’s arguments regarding Taja, including the lack of proper documentation, lack of medical evidence, and a rejection of his testimony on this issue (see paras. 120-146, 157-163). His claim for future massage therapy of $30,000 was also rejected for the reason that no medical evidence supported that claim.
[12]         Finally, Mr. Wilson’s evidence also suffered from credibility problems particularly where not supported by other credible evidence: Reasons, para. 42. Failure to anticipate credibility issues will also not avoid the operation of the Rule: Gehlen v. Rana, 2011 BCCA 219 at paras. 50-51.
[13]         Mr. Wilson argues that he should not be penalized for “guessing wrong”, citing Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1497. However, it is clear from the comments of the court in that case that there were difficult issues relating to the evidence and how any offer could be dealt with, particularly given the involvement of the public trustee. Similar difficulties do not arise in this case.
[14]         I agree that a party is not required to “guess” about the probable outcome; rather, he or she is required to fairly and objectively assess the evidence intended to be adduced at trial and make a reasoned decision about the relative merits of the claim or defence, having in mind a certain amount of litigation risk. In essence, the party receiving the offer must critically review the merits of the claim in relation to the amount offered. As the court noted in Fan, quoting A.E.:
[62]      Regardless of the merits of the plaintiff’s claim the defendant’s offer to settle cannot be ignored, because to do so would undermine the purpose of the Rule. Having decided to proceed in the face of a not insignificant and ultimately successful offer to settle, the plaintiff cannot avoid some consequences.
[15]         The offer amount, while not approaching the amounts sought by Mr. Wilson, in all likelihood fairly assessed the claims about which there was no dispute and added further amounts for the litigation risk that the more contentious claims would go against the defendants. The offer was, no doubt, also prepared recognizing the substantial cost to both parties if the matter proceeded to trial. It cannot be understated that one of the purposes of the Rule is to avoid costs of proceeding further in the action: Martin, para. 8.
[16]         I conclude that the offer should reasonably have been accepted by Mr. Wilson shortly after it was made and that this factor favours the defendants…
[24]         I conclude that all factors to be considered under Rule 9-1(6) favour the costs award sought by the defendants. Accordingly, Mr. Wilson will recover his assessed costs and disbursements up to April 27, 2013, which is 5 days after the offer was sent in recognition that some reasonable period of time would have been necessary to consider the offer. Thereafter, the defendants will recover their assessed costs and disbursements commencing April 28, 2013. After assessment of these respective amounts, the parties shall set off the awards to produce a net award.

More on Collisions Involving Emergency Vehicles

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Collisions Involving Emergency Vehicles

 
UPDATE June 5, 2014 – This decision was overturned on appeal with the Defendant being found fully at fault
____________
As previously discussed, when an emergency vehicle is responding to a call and is involved in a collision fault does not automatically rest with the other vehicle.   All of the circumstances surrounding the collision must be examined.  Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing this area of law.
In last week’s case (Maddex . Sigouin) the Defendant was travelling a few car lengths behind the Plaintiff police officer.  The Plaintiff detected a speeding oncoming vehicle, activated his lights, and attempted a U-Turn at the approaching intersection.   To do so he had to cut across from the left hand lane in which he was travelling, through the designated left had turn lane and into his turn.  The Defendant did not have time to react safely, hit his brakes and also turned into the left hand turn lane in the hopes of avoiding contact.  Ultimately the Court found both motorists equally responsible for the crash.  In reaching this decision Mr. Justice Williams provided the following reasons:
[43]         It is my conclusion that Mr. Sigouin was not paying sufficient attention as he was driving and that he was positioned too close behind the police car, taking into account the speed and the limited maneuverability of his vehicle. By the time he recognized the necessity to react to the police car slowing in his lane, it was too late to safely slow down behind that vehicle. As a result, he was forced into an emergency maneuver which entailed passing the police vehicle. He did not believe it was safe to pass on the right and so he elected to pass on the left which necessitated him moving into the left-turn bay to get past the police car. It is clear that he did not see the flashing emergency lights and react to them in a timely and responsive way. My conclusion that he was not paying sufficient attention is buttressed by the fact that the vehicle he evidently failed to notice was a prominently marked police car displaying flashing lights. It is clear from the evidence that Mr. Sigouin knew that this was a police car because he testified that he made that observation a short time earlier and that he took measures to situate himself so that he was travelling behind that car.
[44]         As for the plaintiff, he initiated a turn, essentially a U-turn, from the number 2 lane. He satisfied himself that could be done safely with respect to the oncoming traffic. However, he appears not to have appreciated that his maneuver could not be safely executed because there was another vehicle following fairly close behind him.
[45]         Further, he initiated his maneuver not from the left-turn bay, but rather from the number 2 lane, a position which made it less apparent that he was going to turn left.
[46]         I accept that the plaintiff was displaying his emergency lights and it would be apparent to any other motorist that he was engaged in some sort of official emergent duties on the roadway. As I indicated earlier, other drivers are expected to yield to such vehicles.
[47]         However, it is abundantly clear from the legislation that displaying emergency equipment, whether lights or lights and siren, does not afford a shield of invincibility or absolute right. Even when an emergency vehicle has that equipment fully deployed, there is an overriding obligation on the operator of the emergency vehicle to ensure that any driving activity be conducted in a safe fashion vis-à-vis other persons on the roadway.
[48]         In the present case, that required the plaintiff to be sure that his U-turn could be executed in safety. He ought to have been aware of the fact that the defendant’s vehicle was following him, fairly close behind; he ought to have checked behind him.
[49]         It is evident that he did not do so.
[50]         In the circumstances, I find that both of the drivers, the plaintiff and the defendant Mr. Sigouin, were negligent in this collision.
[51]         As for allocation of fault, I find each to be similarly responsible, and I apportion liability equally, that is, 50 percent for each of them.