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$50,000 Non-Pecuniary Assessment for Chronic AC Joint Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized. 45 Comments on $50,000 Non-Pecuniary Assessment for Chronic AC Joint Injury

Adding to this site’s archived posts addressing BC non-pecuniary assessments for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic AC joint injury.
In last week’s case (Westfield v. Lindstrom) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from soft tissue injuries which largely recovered her AC joint injury remained problematic at the time of trial that were expected to continue indefinitely.   In assessing non-pecuniary damages at $50,000 Mr. Justice Abrioux provided the following reasons:
[58]         I make the following findings of fact based on my consideration of the evidence, both lay and expert, as a whole:
a.         prior to the Accident the plaintiff had occasional difficulties with her low back.  In addition, she had degeneration in her right shoulder area.
b.         the plaintiff also suffered from asthma and had respiratory problems, which affected her daily living activities to various degrees from time to time.  These difficulties made her more susceptible to developing a more serious condition in the future.  That in fact occurred after the Accident.  The development of the respiratory condition to its current stage which the plaintiff concedes is “serious and disabling,” plays an important role in her day-to-day functioning and ability to enjoy the amenities of life.
c.        the plaintiff sustained various soft tissue injuries in the Accident.  It is also likely she sustained an injury to the AC joint in the right shoulder.  Although the plaintiff has recovered from certain of these injuries she has ongoing pain and discomfort to her right shoulder, with associated discomfort in her neck, which is likely permanent.
d.         the Accident injuries affected the plaintiff’s “original position”, that is, the state of her health and its effects on her functioning prior to the Accident.  This original position included a right shoulder with degenerative changes.
e.         although the plaintiff has indicated she would be prepared to undergo an operation to her right shoulder if that were recommended to her, she has not established that recommendation is likely to occur.  There is evidence the operation could pose a significant risk to her life.  Quite understandably, the plaintiff testified she would not undergo the surgery if there were in fact such a risk to her.  There was no evidence from an anesthesiologist to the effect the plaintiff’s respiratory condition would not in fact result in a significant risk to her life were she to undergo an operation which involved a general anesthetic.  This is what would likely occur in this case.
f.          while the plaintiff does have some ongoing pain and restriction to her shoulder which is likely to be permanent, the effect of the ongoing Accident injuries plays a considerably less negative role in her day-to-day functioning than do the ongoing effects of her serious respiratory condition.
g.         the plaintiff has downplayed to some extent the respective contributions to her current state of health caused by the Accident injuries on the one hand and the respiratory condition on the other.
h.         notwithstanding this, the injuries sustained in the Accident do affect, to some extent, the plaintiff’s current ability to function and the quality of her life generally.  I accept the plaintiff’s evidence and that of her family members that she is no longer as happy and outgoing as she was prior to the Accident.  I do not, however, accept that this state of affairs is entirely due to the injuries sustained in the Accident.  The effect of the respiratory condition on the plaintiff’s life, which includes being the sole cause of her inability to work in a position which provided her with great personal satisfaction as a special needs educational assistant, also contributes to her current psychological state.
i.          the plaintiff has made significant recovery from the effects of the injuries sustained in the Accident.  This occurred within approximately 18 months to two years after the Accident.  She is left, however, with ongoing aches and pains to her upper back and right shoulder area.  These will continue indefinitely to some degree.  The ongoing effects of the injuries sustained in the Accident also affect to some degree her ability to perform certain household tasks…
[72]         I conclude the effect of the plaintiff’s injuries in this case, while generally comparable to those in Rozendaal and Bhadlawala, are somewhat more severe insofar as the day-to-day enjoyment of life and ability to function is concerned.  I award the plaintiff $50,000 under this head of damages, which includes $5,000 for loss of past and future loss of housekeeping capacity.

Passenger 50% at fault for Collision with pedestrian

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

In what can only be described as a unique and bizarre collision, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, assessing fault for a collision where an individual was struck by his own vehicle put in motion by his spouse.
In this week’s case (Mayne v. Mayne) the Plaintiff was in his vehicle with his wife, the Defendant, occupying the passenger seat.   As he was pulling out of his garage he stopped the vehicle and went back in his home to retrieve a key.   He left the vehicle running in neutral (mistakenly believing it had been placed in park).  The vehicle slowly started to run down into the roadway.  His wife, concerned it would be involved in a collision, reached over and attempted to put the vehicle in park.  She was not successful, however, and shifted the vehicle into drive.  The vehicle lurched forward and struck the Plaintiff who was just coming back out of the home.
The Court found both individuals equally to blame for the incident.  In placing 50% of the fault on the Defendant Madam Justice Bruce provided the following reasons:
[31]         Having regard to the circumstances of this case, I am unable to find that Mrs. Mayne has satisfied the onus of proof regarding the defence of “agony of the moment”. There was only a nominal risk of harm to the neighbour’s home and Mrs. Mayne panicked and took unreasonable and dangerous steps to stop the backward rolling vehicle. While Mrs. Mayne did not expect the Buick to roll backward, having no foreknowledge of Mr. Mayne’s failure to engage the emergency brake or to leave the vehicle in park, she nevertheless severely overreacted to the perceived danger. Given the very slight slope of the driveway, and viewed in light of the video presentation showing the likely speed of the Buick as it rolled backward, it is apparent that things were not happening quickly at all. The Buick was travelling ever so slowly albeit in a backward direction. There was no one in the area and the roadway was devoid of other traffic. The neighbour’s home was a considerable distance away. The Buick would have to travel out of the driveway, over the first curb, cross the roadway and negotiate the next curb, and travel through the lawn and the hedges of the neighbour’s home before it would have come into contact with a structure.
[32]         In these circumstances, Mrs. Mayne had time to consider what to do. She could have easily unbuckled her seatbelt to make it easier to reach over and place the vehicle in park. She could have simply taken the key out of the ignition. There was no imminent danger from any objective point of view.
[33]         The court must not make armchair judgments based on hindsight; however, clearly Mrs. Mayne panicked in a situation that would not have panicked a reasonable person in the same circumstances. Counsel argued that her age should be a factor. At 81, her reaction times and her judgment would be impaired. However, the law cannot countenance a lower standard for elderly drivers. Mrs. Mayne had a drivers’ licence and regularly operated the Buick. As a consequence, the court must presume that she possessed sufficient competence to operate a motor vehicle safely.
[34]         For these reasons, I find that Mrs. Mayne was negligent when she took control of the Buick and struck Mr. Mayne.

Defendant Stripped of Costs For Expert Witness Advocacy

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 45 Comments on Defendant Stripped of Costs For Expert Witness Advocacy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, stripping Defendants of significant trial costs they otherwise would have been entitled to as a result of relying on an expert witness who crossed the line into advocacy.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 collisions.  He alleged he sustained a traumatic brain injury and sought damages exceeding one million dollars at trial.  The Court rejected the brain injury claim and found that the Plaintiff sustained modest injuries awarding $15,000 in total damages.  Prior to trial ICBC made a formal offer of settlement of $125,000.   ICBC sought costs from the time of the offer onward. Mr. Justice Harvey held that normally such an order was appropriate but because of the Defendant’s expert witness’ evidence at trial which crossed into advocacy and further due to the Defendant lawyer’s conduct in the course of a mid-trial application, the Defendant should be stripped of their post offer costs.  In coming to this conclusion the Court provided the following reasons:
[72]         As  earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.
[73]         The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate:Jayetileke, supra.
[74]         In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.
[75]         Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.
[76]         In the circumstances, despite the September Offer and the defendants’ success on the issue of whether the plaintiff suffered an MTBI as a result of any of the four accidents, it is appropriate to deny the defendants the costs of trial leaving intact the plaintiff’s entitlement to costs up to and including the date of the offer to settle but no costs thereafter.

Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a Defendant who u-turned into a parking spot behind a backing up vehicle.
In this week’s case (Ferguson v. Yang) the Plaintiff stopped along the curb of 8th Street in New Westminster to drop his daughter off for school.  There was a gap behind him with a white van parked behind him.  The Defendant, who was approaching from the opposite direction made a u-turn and pulled into the gap.  At the same time the Plaintiff was backing up and a collision occurred.

Although there was a dispute as to how the collision occurred the Court found the above scenario the likely one as the Defendant’s evidence was “fraught with inconsistencies and obvious exaggerations“.  In finding the Plaintiff faultless for the collision Mr. Justice Weatherill provided the following reasons:
41]         In my view, the u-turn performed by the defendant in an attempt to secure a parking spot across the street in a school zone where parents were busy dropping their children off for school was a maneuver fraught with danger.  Moreover, I am satisfied that the plaintiff’s backup lights were illuminated, that the defendant ought to have seen them and that he ought to have anticipated the plaintiff’s vehicle was in the process of reversing into the space the defendant was attempting to move into.  Captain MacPherson saw these backup lights.  Had the defendant been keeping a proper look out, he would have seen them as well.
[42]         The defendant has failed to satisfy me that the plaintiff was contributory negligent in any way.  
[43]         The law does not require perfection on the part of the plaintiff to guard himself against every conceivable eventuality.  He must only guard himself against those eventualities that a reasonable person ought to have foreseen, within the ordinary range of human experience.  The plaintiff was entitled to proceed on the assumption that all other vehicles would do what is there duty, namely observing the rules of traffic: Pacheco (Guardian ad Litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11; Dechev v. Judas, 2004 BCSC 1564 at para. 22.
[44]         The plaintiff checked the area around his vehicle by looking in his side and rear view mirrors and by looking over his right shoulder.  He did all that he ought to have done.  A reasonably prudent driver should not be expected to anticipate that while in the course of backing up, another vehicle will perform an aggressive and illegal u-turn from the other side of the street in an attempt to occupy the space behind him.
[45]         The plaintiff had no warning of the impending collision.  I do not believe the defendant’s evidence that he was stopped and that he honked his horn prior to the collision.
[46]         In Carson v. Henyecz, 2012 BCSC 314, Madam Justice Hyslop stated at para. 99
            The duty imposed on a reversing driver is not just when the driver starts to reverse, but throughout the entire reversing procedure and to its completion.  The object is to be aware as reasonably possible to what is behind the driver and in the driver’s path while in reverse.
I agree with those comments.  I find that, in the circumstances here, the plaintiff conducted himself appropriately and was as aware as reasonably possible to what a reasonable driver should have anticipated would be in his path while reversing his vehicle.  He could not have reasonably anticipated that the defendant would do what he did.  
 

From Medical Marijuana to Surveillance and More

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As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts.  I do this because it makes it easier to search archived posts by case specific topics.
Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary.   In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest.  The entire judgement is worth a read.
In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision.  Both motorists claimed they had a green light which simply could not be true.   The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault.  The Plaintiff  claimed damages of over $450,000.  The Court rejected most of these claimed damages and in doing so illustrated the following points:
Video Surveillance Successfully Used
Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court.  Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims:
[103]     I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial.  These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer.  This included squatting, and holding a tripod above his head to take pictures.  He moved fluidly, in and out of the driver’s seat, apparently without discomfort.  He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court.  The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day.  However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana.  I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts.  The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day.
[104]     Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors.  However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic.  I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court…
[106]     I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries.
Medical Marijuana
The Plaintiff claimed damages of $20,000 for the cost of medical marijuana.  While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana.  The defendant pursued such an analysis with apparent success.  In rejecting these claimed damages the Court provided the following analysis:
[60]         On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before.  Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana…
[112]     The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it.  However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes.  His internet postings suggest that.  Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries…
[120]     The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000.  The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).  As such, I award nothing for the cost of future care.
Frequency of Doctor Visits
The last point of interest deals with the Plaintiff’s frequency of doctor’s visits  I have canvassed this topic previously.  In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury.  The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim.  The following observation was made by Justice Sigurdson:
 [65]         Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries.  From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion.  Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made…
[107]     It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit.  He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes.  The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor.  Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.
 

Hearsay of Reduced Vehicle Value Not Enough to Prove Accelerated Depreciation

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I have previously discussed the fact that accelerated vehicle depreciation is a recognized damage in BC.  Reasons for judgement were released this week by the BC Court of Appeal addressing such a claim noting something more than hearsay is required to prove the loss.
In this week’s case (Kapelus v. Hu) the Plaintiff was injured in a 2006 collision.  She proceeded to trial and was awarded damages for her injuries but her claim for accelerated vehicle depreciation was dismissed.  The Plaintiff presented evidence of offers that others provided her for the purchase of the vehicle.  The Court of Appeal noted that if this was the only evidence then there was no error in dismissing this aspect of her claim.  The Court provided the following reasons:
24]         Finally, I should say that the argument advanced by Mrs. Kapelus, that the judge erred in rejecting evidence of the loss in value of her vehicle, based solely on her report of offers to purchase the vehicle, is without merit.  The judge ruled that Mrs. Kapelus’ evidence, that third parties had been prepared to purchase her car at a certain price prior to the accident, was hearsay.  I accept this ruling: it is hearsay and it is not rendered admissible under the business records exception in the Evidence Act, R.S.B.C. 1996, c. 124.

Want Your Day In Court? Mortgage Your Property First!

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

In a very rare display of the BC Supreme Court’s powers pursuant to its inherent jurisdiction, and a strong reminder of the potentially high financial consequences of BC’s loser pays legal system, Mr. Justice Burnyeat released reasons for judgement ordering a Plaintiff to mortgage her properties to the amount of $100,000 as security for costs prior to allowing her claim to proceed to trial.
In today’s decision (IJ v. JAM) the Plaintiff sued the Defendants alleging sexual harassment   The Plaintiff had other costs orders made against her and the Court found she had “a pattern of ignoring orders for costs that have been made“:  The current Defendants applied for an order requiring $100,000 to be paid into court as security for costs.  Mr. Justice Burnyeat agreed security was appropriate and provided the following reasons:
[18]         I am satisfied that “very special circumstances” are present so that an order for security for costs should be made.
[19]         First, the Plaintiff has a pattern of ignoring orders for costs that have been made:  in the Petition for judicial review of the British Columbia Human Rights Tribunal decision where costs were awarded in favour of J.A.M. and, in these proceedings where an order for costs was made against the Plaintiff arising out of the dismissal of the civil claim against the G.S. and J.S.
[20]         Second, I take into account the merits of the claim of the Plaintiff.  As I will be the trial judge for the lengthy trial that is scheduled for June 2013, I do not express any final opinion about the merits of the claim other than to observe that, as presently drafted, the claim against J.A.M. and J.M. is expressed in an often confusing, emotional and vitriolic manner, with many allegations not relating directly to the very serious claim that the Plaintiff makes against J.A.M.  and J.M.  It is not appropriate at this stage to make a fine assessment of the relative merits of the claim of the Plaintiff but only to observe that the claims are not so weak that they are bound to fail.  However, regarding the claim, I take into account the agreement that was executed by the Plaintiff releasing the Company and officers, including J.A.M. for previous acts which occurred.  It is a fair assessment at this point that the case of the Plaintiff has many problems…
[25]         The Defendants request the payment into Court of the sum of $100,000.  It is clearly the case that such a sum is not available and that to require that sum to be paid would effectively deny the Plaintiff access to the Court.  However, the affidavit of the Plaintiff is that the two Whistler properties have a value of approximately $729,000 and have charges against them of approximately $550,000 so that her equity is in the neighbourhood of $279,000.  The Plaintiff also states that her property in Ontario has an approximate value of $560,000 with a mortgage of approximately $164,000 against it so that the approximate equity is $396,000.
[26]         Taking into account all of the circumstances surrounding the claim of the Plaintiff, I am satisfied that there is good reason and very special circumstances why an order for security for costs should be made.  Accordingly, a mortgage in the amount of $100,000 without interest will be granted by the Plaintiff against her two properties in Whistler with the mortgagee being the Registrar of the Supreme Court of British Columbia.  The mortgage is not to be discharged or enforced without the further order of the Court.
[27]         The Plaintiff will be required to sign that mortgage within ten days of it being tendered on her for her signature.

Law of Spoliation of Evidence Discussed by BC Court of Appeal

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Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision.  The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision.  The Plaintiff argued that the vehicle was prematurely destroyed and an adverse inference should be drawn that no mechanical failure took place.  The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence:
[27]         Finally, I turn to the plaintiff’s argument that ICBC’s (apparent) destruction of the Jeep “effectively destroyed” her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court’s inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the “real party in interest”, such that the vehicle was destroyed by a person who was in effect the defendant in this litigation.
[28]         I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.)
[29]         On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v. Canada (1896), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red Cross Society (1998) 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and the discussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that the evidence would be required for litigation purposes’.)  As stated in McDougall v. Black & Decker, “When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.”  (Para. 24).
[30]         The Court observed in McDougall that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms. Chow-Hidasi. (See McDougall, para. 25, British Columbia Law Institute, Report on Spoliation of Evidence (2004), at 10-20.)
[31]         In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.

Producing False Witness To Collision Leads to $200,000 in Financial Consequences

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In an illustration of BC’s motor vehicle insurance system having real teeth to punish fraudulent acts, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering substantial damages against a couple who produced a false witness to ICBC following a motor vehicle collision.
In this week’s case (ICBC v. Panag) the Defendant was involved in a 2006 collision.  The parties had competing versions of how the collision occurred.  The Defendant produced a witness in support of her claim.  After investigation ICBC determined this individual in fact did not witness the collision and was known to the Defendant.
ICBC paid out over $188,000 in claims following the crash.  ICBC held the Defendant in breach of insurance and sued to recover this money on the basis that the Defendant attempted to commit insurance fraud.  Mr. Justice Grauer agreed and ordered repayment of these damages along with punitive damages.  In reaching this decision the Court provided the following reasons:
64]         In these circumstances I am satisfied that the Panags and Harinder Grewal were in fact involved in a conspiracy to put forward Mr. Grewal to ICBC as a witness to the collision knowing that he had not in fact witnessed it, and with the intention that he provide ICBC with evidence that he did not have and which they knew to be untrue.  The facts, in my view, cannot fairly admit of any other inference.  Speculation is not required…
[67]         It follows that both Mr. and Mrs. Panag participated in a conspiracy to deceive ICBC about both how the accident happened and the status of Mr. Grewal as a witness to the accident.  They clearly intended ICBC to rely upon their representations, and ICBC as a result was left scrambling for a considerable period of time as it embarked upon an extensive investigation in an attempt to straighten out what would otherwise have been and should have been a straightforward matter.  This amounts to fraud.  See, for instance, ICBC v. Nisbet, 2009 BCSC 1570, at para. 85.
[68]         In the result, the Panags have forfeited their right to coverage under s. 19(1)(d) of the IMVA as well as s. 19(1)(e), and ICBC is entitled to recover against both of them.  Whether directly as a consequence of the Panags’ conspiracy to commit fraud or as a result of the application of the principles of unjust enrichment, this would include the moneys paid out to Mr. Panag for his material damage claim and to Mrs. Panag for her Part VII claim.  The total amount awarded to ICBC in this regard is $188,722.86, which I am satisfied accurately represents what ICBC paid out, to which I add pre-judgment interest of $8,460.21.  I have deducted $305.06 from the interest claimed because of the absence of evidence concerning the date when expenses related to surveillance were incurred…
[70]         In providing ICBC with willfully false statements and in conspiring to commit fraud, the Panags undoubtedly engaged in conduct that was reprehensible.  In the particular circumstances of this case, however, I note that the consequences of their actions have exposed them to statutory liability far beyond the actual financial consequences of their actions.  Had they succeeded in their deception, they would have saved a mere $801 plus whatever might have been gained through a potential personal injury claim.  Now they must pay over $188,000 plus interest…

ICBC Projects Almost $1 Billion in Net Income From 2012-2015: Government Plans $539 Million Profit Scoop

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The BC Government’s 2013-2014 Budget has just been released.  Included in the documents is ICBC’s Service Plan for 2013-2015 which reports robust net profit expectations.  Below I reproduce the Crown Corporation’s Summary Financial Outlook.  It is noteworthy that this current projection is up over 200 Million from ICBC Projections for 2012-2014 released last year.
The Government also reports a planned $539 Million profit scoop for ‘core government services’ with the Budget and Fiscal Plan reporting as follows:
Insurance Corporation of British Columbia – ICBC’s net income outlook is forecast at
$257 million in 2013, $222 million in 2014 and $205 million in 2015. The outlook
assumes average annual growth of 1.5 per cent in the number of insured vehicles and
a 3.6 per cent average annual increase in claims costs. Over the fiscal plan period,
ICBC is forecast to remit $539 million of its excess Optional insurance capital to the
consolidated revenue fund to support core government services.