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Field Used as Parking Lot Deemed "Highway" In ICBC Hit and Run Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 152 Comments on Field Used as Parking Lot Deemed "Highway" In ICBC Hit and Run Claim


One of the restrictions in bringing a lawsuit against ICBC for damages caused by an unidentified motorist is the incident needs to occur on a “highway“.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the definition of highway in the context of a hit and run claim.
In this week’s case (Nadeau v. Okanagan Urban Youth and Cultural Association) the Plaintiff was struck by an unidentified motorist while standing in a field that was used as a parking area for an outdoor concert.  The Plaintiff sued ICBC for damages.  The Court ultimately decided that given the use of the private property at the time it was a highway and the unidentified motorist claim could proceed.  In so finding Mr. Justice Powers provided the following reasons:
[82]         The Motor Vehicle Act, R.S.B.C. 1996, c. 318 defines “highway” as follows:
“highway” includes
(a) every highway within the meaning of the Transportation Act,
(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and
(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,
but does not include an industrial road;
[83]         In the present case, the issue is whether the place where the accident happened falls within the definition of “highway” in s. 1(c) of that definition. The defendant, ICBC, denies that the place where the accident occurred was a “highway” on the basis that it is a private place to which the public did not have access, or was not invited for the purposes of parking.
[114]     On June 30, when Mr. Nadeau attended the concert with his friend, Mr. Jong, they parked in an area that Mr. Jong described as an area where people with passes parked. However, there is no evidence about what passes were needed, even when this area was controlled by security. There were passes for security, crew, media, artists, guests, all access and production. It is not even clear that everybody that entered this area with a vehicle required a pass. They used their pass to get into this parking area. On July 1, when they returned, Mr. Jong’s memory is that they passed through the secondary gate and that he had to show a pass to security people at this gate. He recalls there were a couple of rows of parked vehicles in this area. He says that later in the evening, before the accident, when he came and went, that there was no security at this gate, he was not stopped, and was not required to provide any pass. Mr. Nadeau’s evidence as well is that he does not recall any security at this gate later that evening on July 1, when they attended. Mr. McMann’s evidence was that initially, in the secondary area, people needed a pass to park in this area, but then things got slack. Mr. Tosh Mugambi could only be sure that the VIP area was being strictly controlled. There were a number of different kinds of passes. The concert goers had ticket stubs, but there were a large number of different kinds of passes, artist passes, VIP passes, guest passes, and the guest could be anybody, including volunteers, or anybody who happened to receive a pass from either one of the organizers or even the owners of the property who had a number of passes.
[115]     The area has been described as a field and physically it was a field. It is private property. However, it was being used as a parking lot when the accident occurred. At some point during the concert, there was some control over who had access to this area. However, that was not consistent throughout the concert, and I am satisfied that by the evening of July 1, this secondary area was no longer being controlled or restricted by the organizers or by security. The public had access to this area for the purposes of parking. The primary parking for the concert goers was in the general parking area, but there was no longer any control or restrictions on parking in the secondary area. Therefore, I am satisfied that for several hours before and, certainly at the time of the accident, this was a place in which the public had access for the purposes of parking. The public at this time included concert goers who might proceed through this secondary gate and clearly included anyone who was there in order to carry on the business of putting on or assisting in some way with the concert, or their friends or supporters. The people that had access at that time was a broad enough group to fall within the definition of the public in s. 1(c) of the Motor Vehicle Act.

Welcome "The Verdict" Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


Last year I had the pleasure of authoring an article addressing social media use by lawyers at the invitation of David Bilinsky, who works as a Practice Management Advisor at the Law Society of BC.
The article has now been published in issue 134 of TLABC’s The Verdict.  For those of you visiting for the first time after reading this article  welcome!    Below are a list of some of my more popular archived topics.  Feel free to browse around and contact me if you have any questions about the topics canvassed in the article.
Facebook Use in BC Personal Injury Litigation
Indivisible Injury Caselaw Comments
Examination for Discovery Caselaw Developments
Judicial Criticism of Expert Witness Advocacy
BC Supreme Court Costs Cases
Mitigation of Damages
Expert Witness and Independent Medical Exam Caselaw Archives
Rule 15 Caselaw Developments
And just for fun, an off-topic post which proved to be the most visited article published here.
 
 

ICBC Expert Evidence Rejected for Advocacy

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived posts highlighting judicial criticism of expert witness advocacy, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, rejecting the opinion of an ICBC retained expert in a chronic pain case.
In this week’s case (Dakin v. Roth) the Plaintiff was injured in three separate collisions.  At trial she introduced evidence from a variety of medical experts including an occupational therapist.  ICBC retained an expert who criticised this evidence.  The Court, however, was ultimately critical of ICBC’s rebuttal expert’s opinion finding it was not “fair, balanced or objective“.  In rejecting the rebuttal evidence Mr. Justice Cole provided the following reasons:
[38]         What is most disturbing about Ms. Taylor’s report is that she describes what she says are discrepancies in Ms. Dakin’s reports to various medical professionals at various points in time. She then lists approximately 1½ pages of these discrepancies and states that it was appropriate for her to make these comments as they were relevant in assessing a client’s reliability. When questioned why she also did not highlight the consistencies within the plaintiff’s reports to other medical professionals, she could not provide a rational answer. I am satisfied that the only reason she provided discrepancies in the plaintiff’s reports to other medical professionals was to attack the plaintiff’s credibility. Her evidence was not fair, balanced or objective, I am satisfied that Ms. Taylor was more of an advocate on behalf of a client. I therefore reject her evidence.

Facebook Photos Found to be "Of Limited Usefulness" In Injury Claim

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized.

Adding to this site’s archived posts addressing Facebook photos in BC personal injury lawsuits, reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding such photos to be ‘of limited usefulness‘ when assessing a chronic soft tissue injury claim.
In today’s case (Dakin v. Roth) the Plaintiff was injured in three collisions.  The Defendant unsuccessfully argued that the Plaintiff  “is not a credible witness”.  In support of this argument the Defendant introduced two years of photos taken from the Plaintiff’s Facebook profile.  In discussing the lack of impact of these photos Mr. Justice Cole provided the following reasons:
[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.
[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.
 

Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 55 Comments on Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons


Remember grade school math problems?  You needed to not just give your teacher the answer but also show your work.  The conclusion without the supporting paper-trail wouldn’t pass muster in Grade 5.   The same is true with medical opinions in BC injury trials.  It is not enough for a doctor to relate injuries to a collision, the physician must explain the factual basis underlying their opinion.  Failure to do so can result in a Court placing little weight on a physicians opinions.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court.
In the recent case (Perry v. Vargas) the Plaintiff was involved in a 2006 collision.  She sued for damages claiming long-standing injuries with disabling consequences.  The Court accepted the Plaintiff was indeed injured but disagreed with the Plaintiff’s assertion of long-standing disability being related to the crash.
In the course of the trial the Plaintiff introduced evidence from her treating physician supporting her position.  The Court struggled in giving “much weight” to the physician’s opinion, however, noting that the physician provided “no insight into the reasons for (her) conclusion“.  In addressing the lack of reasoning underlying the opinion Mr. Justice Savage provided the following criticism:
[56]         I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events.
[57]         In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below…
[122]     The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”.
[123]     The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”:
56          In Mohan , Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, which is likely to be outside the experience and knowledge of a judge or jury, … the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland , supra , McIntyre J., speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40, on the role of expert witnesses where Lord Cooper said:
Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added.]
The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.
[124]     As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”.
[125]     For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.

"Compelling Facts and Circumstances" Required to Depart from Rule 15 Pre-Trial Settlement Cap

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15, Uncategorized.

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that when a Rule 15 matter settles pre-trial and the settlement agreement incorporates costs, these should be assessed at $6,500 unless there are compelling facts and circumstances.
In the recent case (Ostadsaraie v. Shokri) the Plaintiff settled his claim 55 days prior to the scheduled trial and also prior to his Trial Management Conference.   The Plaintiff sought $6,500 in costs and Registrar Cameron agreed this amount was appropriate   After canvassing the relevant authorities the Court provided the following reasons:
[8]             In this case, Ms Neathway had done a substantial amount of preparation and delivered a settlement offer that resulted in a settlement of the case some 55 days before trial. There was a housekeeping matter left to be done, a trial management conference – but given the settlement, it did not occur.
[9]             Ms Neathway had delivered all of her expert reports and had prepared and completed all of the discovery in readiness for trial. She was frank to say that she would have needed to interview again one or more of the witnesses that would be called at trial and of course complete the final preparations for her client to give his evidence at trial. Nonetheless, a substantial amount of the preparation had in fact been completed by the time the settlement was made and in the circumstances it is appropriate to award the plaintiff the full amount of the cap…

Doing it Yourself – Suing for Accelerated Vehicle Depreciation in BC Small Claims Court

Written by admin on . Posted in Uncategorized.


As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged.  The reason for this is quite simple, when a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.   You can click here to watch CBC’s Marketplace investigation highlighting this reality.
Although Defendants often are reluctant to acknowledge such a loss, the law in BC recognizes this lost value.  If your vehicle was damaged due the the actions of others you can sue to recover your damages for “accelerated depreciation“.
Often times the cost of hiring a lawyer to advance an accelerated depreciation claim can outweigh the amount of the recovery making it an unrealistic option.  So what can you do?
In BC the Small Claims Court has a current limit of $25,000.   This ceiling is adequate to cover all but the most serious of accelerated depreciation claims.  If you did not suffer a personal injury in your crash and your only loss is accelerated vehicle depreciaton bringing a self represented action in Small Claims Court is a viable option.
The Provincial Court has a useful website explaining the basics of starting a lawsuit.  You can click here to access information about filing your claim.
In addition to this, here are some of the key points to be aware of before getting started:
1.  The claim needs to be against the at-fault party.  The insurance company of the at-fault driver (such as ICBC) is the wrong party to sue.  Typically the action is brought against the driver of the at-fault vehicle along with the registered owner who is ‘vicariously liable‘ for damage caused by people who operate their vehicle with their consent.
2.  The Notice of Claim must describe a ’cause of action’.  In other words you have to sue for a recognized wrong.  Typically car crash   cases deal with ‘negligence’ that is, the at fault motorist caused the crash by careless driving.
3.  The resulting harm needs to be caused by the negligent action.  The Pleadings should reflect that the accelerated depreciation was caused as a result of the at-fault driving of the Defendant.
4.  The loss needs to be proven with admissible evidence.  It is not good enough to baldly suggest that a vehicle sustained an accelerated depreciation.  Some vehicles do not sustain any loss in value following a collision.  It is a good idea to retain a qualified expert to examine the vehicle, the repairs done and to then comment on what the vehicle’s lost value is compared to its natural depreciation at the time of the collision.  The expert should be prepared to come to court to testify as to his opinion and the expert’s report needs to be served in compliance with the Rules of Court.   While it does cost money to retain an expert it is worth keeping in mind that the Small Claims Court does have the discretion to order reimbursement of reasonable disbursements if the claim is successful making such expenses a worthwhile investment.
5.  You must bring your lawsuit in time.  If you wait beyond the applicable limitation period before starting your lawsuit the claim will be dismissed.
6.  If you have personal injuries but fail to sue for these and only claim for accelerated depreciation you may be barred from bringing a personal injury action later.  It is important to claim damages for all losses resulting from the crash.
 
 

Is Tort Reform Needed To Allow Proper Crime Victim Compensation?

Written by admin on . Posted in Tort Reform, Uncategorized.

I have previously discussed the harsh reality that when a person is injured through the intentional, criminal wrongdoing of others they often face a far tougher road to receiving fair compensation for their injuries through the legal system as compared to victims of negligently caused harm.  The reason being that when people are injured through negligence defendants are often insured to pay for the damages.  When people are injured through crime this usually is not the case leaving the victim not only with the legacy of their injuries but with a possible ‘dry judgement’ in the event they sue for damages.
Reasons for judgement were released recently by the BC Supreme Court, Port Alberni Registry, dealing with a criminal assault which made me consider this issue again.  In the recent case (Thornber v. Campbell) the Plaintiff was the victim of a “brutal and unprovoked” assault by the Defendant as the Plaintiff “lay sleeping in his bed“.  The assault caused “multiple facial, head and neck, and jaw contusions…oral/dental injuries including multiple dental fractures…PTSD…(and) recurrence of a previously-suffered Major Depressive Disorder“.
The Defendant was criminally convicted for the assault.  The Plaintiff sued for damages and had his non-pecuniary damages assessed at $125,000.   Notably the Defendant did not participate in the proceeding leading me to the suspect that this Plaintiff may have little more than a dry judgement following this assessment.   If that is the case it is worth repeating my views about whether this issue should be reviewed by the legislature to create a meaningful compensation system for victims of crime who pursue ‘dry’ damages through the tort system.  For the sake of convenience here were my previous thoughts:
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgements.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.
Comments and feedback are welcome.
 

176,000 Thank-You's, A Clawbie and a Dip in a Canadian Lake

Written by admin on . Posted in Uncategorized. 2 Comments on 176,000 Thank-You's, A Clawbie and a Dip in a Canadian Lake

Well another year is in the bag.  I celebrate this time of year with a traditional dip in a Canadian Lake.  I’ve been lucky enough to have my eldest son join me in this nonsensical tradition for the past three years running.  So here is this year’s photo evidence of this fine feat.

This time of year the Canadian Law Blog Awards are also handed out.  I was honoured to have this blog rank as runner-up for the Fodden Award for Best Canadian Blog.
Thank you to all who nominated this blog and to Steve Matthews, Simon Fodden and Jordan Furlong for your kind words.  I should note that the Clawbies are far less about winning than they are about the nomination process.   Many fine blogs made the final cut this year and I encourage you to check them all out here.
Lastly, while I don’t closely monitor analytics,  this time of year I like to check in to see what kind of an audience my blog has drawn.  An astounding 173,962 people have taken the time visit this blog in 2012.

 
Considering the very narrow focus of this blog I am amazed by this number.  A big thank you to all of you.  2013 will be the 6th Calendar Year in which I author this blog.  I intend to put in another solid year and hope you continue to visit this humble slice of the blogosphere.
Happy and prosperous 2013 everyone.  Now go jump in a lake!

Plaintiff Awarded Partial Costs Despite Having Claim Dismissed at Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.
In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot.   Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident.  After factoring this split in the Plaintiff’s assessed damages came to  $28,305.  Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.
Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:
[20] In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.
Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’.  The Court needed to consider what costs consequences ought to flow in these circumstances.  In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:
[21] The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.
[22] The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..
[28] Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.
[29] The next issue is whether the payment of the Part 7 benefits should affect the award of costs…
[43] This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.
[44] Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…
[45] What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…
[62] Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.
[63] Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.