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LVI Defence Rejected Again; Damages Awarded for Modest Injuries

Written by admin on . Posted in BCSC Civil Rule 14, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.
In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision.  The impact resulted very minor vehicle damage.  The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“.  Madam Justice Fitzpatrick rejected this logic and provided the following reasons:

[46] As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47] I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

[48] Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

[49] In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.

The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery.  In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:
[71] In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…
[77] I award the sum of $7,000 for non-pecuniary damages.
Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court.  You can click here to read other decisions addressing this discretionary issue.

Welcome Top MMA News Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 74 Comments on Welcome Top MMA News Readers


Keith Grienke, owner of topmmanews.com kindly republished my article discussing the implications of Bill S-209 (the Bill seeking to formally legalize MMA in Canada) and the potential consequences this will have on amateur MMA contests.  I want to thank Keith for bringing a larger, and more targeted, audience to this issue.
For those of you visiting here for the first time, welcome.  I write about Canadian MMA Legal Developments at the Canadian MMA Law Blog and you can visit there for more details.

Liability Discussed Following Parking Lot Collision

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


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing fault for a parking lot collision involving two vehicles.
In yesterday’s case (Sheikh v. Struys) the Plaintiff and Defendant were both attempting to leave a busy parking lot following a Canucks game.   A truck has stopped leaving a gap in the travelled laneway.  The Defendant drove into the gap and at almost the same time the Plaintiff “reversed back into (the Defendant’s) Jeep“.  The Plaintiff argued that the Defendant was wholly or at least partially at fault alleging the gap was left for him to fill.  Madam Justice Fitzpatrick disagreed and provided the following reasons in dismissing the Plaintiff’s claim:

[47] I find as a fact that Dr. Sheikh’s SUV reversed back into Mr. Struys’ Jeep while Mr. Struys was partially into the laneway and had stopped there. I also find as a fact that Dr. Sheikh could not see Mr. Struys’ Jeep at the time of the collision. Further, I find that Dr. Sheikh could not see what was happening behind his vehicle as he was reversing into the laneway and, therefore, he has no knowledge as to how the collision occurred.

[48] Dr. Sheikh contended that Mr. Struys should have paid more careful attention as to what was going on in front of him. Mr. Struys was said to have mistakenly assumed, without any eye contact with the driver of the Dodge truck, that the Dodge truck had stopped for him, which resulted in him colliding with Dr. Sheikh’s SUV.

[49] In my view, it does not matter which party was the one being allowed to enter the laneway by the driver of the Dodge truck. The driver of the Dodge truck may in fact have been stopping for both of their vehicles in that respect. There is no evidence one way or the other as to whether the Dodge truck had stopped for Dr. Sheikh, Mr. Struys or both of them. The point is that the Dodge truck had stopped and both parties assumed, based on their contact with the driver of the Dodge truck, that he or she was stopped for them. As such, it has not been shown that Mr. Struys “mistakenly” assumed that the Dodge truck had stopped for him…

[53] The Motor Vehicle Act, R.S.B.C. 1996, c .318 addresses the duty of care owed by a driver who is reversing his vehicle:

Caution in backing vehicle

193 The driver of a vehicle must not cause the vehicle to move backwards into an intersection or over a crosswalk, and must not in any event or at any place cause a vehicle to move backwards unless the movement can be made in safety.

…

[62] I find that Dr. Sheikh has not proven, on a balance of probabilities, any negligence on the part of Mr. Struys. Nor did Dr. Sheikh discharge the burden under the Motor Vehicle Act in proving that he was able to move back “in safety” while reversing his vehicle.

[63] Accordingly, I find Dr. Sheikh entirely responsible for the collision. As such, there will be no apportionment of liability between the parties pursuant to the Negligence Act.

ICBC Ordered to Cover Damages for Corvette Crash at Western Speedway

Written by admin on . Posted in Uncategorized. 95 Comments on ICBC Ordered to Cover Damages for Corvette Crash at Western Speedway

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, discussing the limits of the ICBC coverage exclusion for crashes which occur during “performance driver training”
In today’s case (Nye v. ICBC) the Plaintiff was the owner of a Corvette.  He joined the Victoria Corvette Club which arranged for a private autocross event at the Western Speedway.  While participating in this event the Plaintiff crashed his vehicle with the Court summarizing the collision as follows:
[13] The plaintiff experienced no problems with the course until he came to a series of turns around some pylons placed several metres apart.  He entered that part of the course without difficulty and he safely manoeuvred around all of the pylons except for the last one.  As he attempted to complete his turn around the last pylon he felt he was too close to it and he said that when he attempted to put his foot on the brake pedal to slow down his foot slipped off the brake pedal and onto the accelerator causing his vehicle to lurch forward.  As a result he momentarily lost control and the vehicle collided with a concrete retaining wall.  The plaintiff was shaken up, but not injured; however, his car was severely damaged.
The Plaintiff had collision coverage with ICBC but they refused to cover the loss arguing the crash occurred during a ‘speed test‘ during ‘performance driver training‘.  Mr. Justice Bracken rejected ICBC’s arguments and ordered the damages to be covered finding that while the collision did occur during ‘advanced driving training‘ there was no element of a speed test at the time.  The Court provided the following reasons:

[19] Section 2(1) of the Regulation states:

Unless otherwise provided in a special coverage certificate, the Act and this regulation do not apply in respect of

…

(f)         a vehicle being used in a contest, show or race, or in advanced or performance driver training, if

(i)         the activity is held or conducted on a track or other location temporarily or permanently closed to all other vehicle traffic, and

(ii)        there exists an element of race or speed test.

…

(2)        In subsection (1)(f), “element of race or speed test” means driving at high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[37] On the evidence, I am satisfied that the activity in which the vehicle was used was an event that can fairly be described as advanced driver training.  An instructor was available and did introduce the plaintiff to the course in his first slow drive around the course.  A club session was held in advance to provide guidance to participants on how to drive the course.  The plaintiff did not actually receive any direct instruction on how to handle his vehicle on the course; however, there was some general guidance on what he should expect…

[39] I am also satisfied on the evidence that the event was held on a closed track.  While there was evidence of one non-participating vehicle intruding onto the track during the plaintiff’s first run, it was clear that the vehicle should not have been there and that the driver had proceeded past a flag person or club member stationed at the entry point for the purpose of keeping non-participants off the course…

[41] The remaining issue is whether the defendant has proven that there was an element of race or speed test in the event.  To repeat, the defendant must establish that

… there exists an element of race or speed test, which means driving at a high speed, and includes passing manoeuvres, driving in close proximity to another vehicle or assessing vehicle limitations in speed, acceleration, turning or braking…

[49] Here, the evidence does not support the conclusion that the plaintiff was assessing his vehicle’s limitations in speed, acceleration, turning or braking.  I find he was driving his vehicle well within its limitations of speed and turning, and I accept his evidence that the accident resulted when his foot slipped from the brake to the accelerator, causing the vehicle to accelerate directly into the retaining wall.

[50] In the result, I find the defendant has failed to establish that the plaintiff was operating his vehicle in breach of the Regulation or his insurance policy.  I find that he is entitled to coverage under his own damage provisions of the policy of insurance issued by the defendant.

Turning Motorist Found Fully At Fault For Striking Pedestrian in Marked Crosswalk

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

Reasons for judgement were released yesterday by the BC Supreme Court, Kelowna Registry, assessing fault for a collision involving a vehicle and pedestrian.
In yesterday’s case (Culos v. Chretien) the Plaintiff was struck by a right hand turning vehicle as he was crossing a street in Kamloops BC.    The Plaintiff entered “a zebra crosswalk that was painted on the surface of Lorne Avenue at its intersection with 3rd Avenue.“.  At the same time the Defendant  was attempting a right hand turn onto Lorne Avenue.  Neither parties saw each other and a collision occurred.

The Defendant admitted fault but argued the Plaintiff was partly to blame for the collision.  In rejecting this argument Mr. Justice Rogers provided the following reasons:

[45] I accept the plaintiff’s evidence that he was at or very near the edge of the end of the sidewalk on 3rd Avenue when the unknown lady finished crossing Lorne Street and walked past him. I also accept the defendant’s evidence that she was stopped at the stop line on 3rd as she watched the same unknown lady finish crossing the street. Given those findings, it follows that at the same moment that the plaintiff was standing at the edge of the sidewalk on 3rd, the defendant was stopped at the stop line on 3rd. At that moment, the defendant’s car was behind the plaintiff and somewhat to his left.

[46] I find that when the unknown lady finished crossing Lorne, both parties began to move. The plaintiff entered the crosswalk. At the same time, the defendant moved into the intersection with her car angled to its right. The plaintiff carried on while the defendant stopped briefly at the thin white line painted across the extreme end of 3rd where it joins Lorne. Neither party saw the other. The defendant looked to her rear left to check for traffic on Lorne. At that moment, the plaintiff was established in the crosswalk and was directly in front of the defendant’s car. The defendant then began to move her car forward without first looking in the direction that she was traveling. In the result, the front of her car struck the plaintiff.

[47] The defendant’s submission that the plaintiff was contributorily negligent is superficially attractive – after all, her car was there to be seen. The presence of her car in the intersection at the same time that the plaintiff was in the crosswalk could be thought to constitute an immediate hazard for the plaintiff.

[48] The flaw in the defendant’s argument is this: the plaintiff was established in the crosswalk before the defendant got underway from her second stop to check for traffic. Had the plaintiff seen the defendant, he would have seen her move forward from the stop line, stop at the thin white line, and look back over her left shoulder to check for traffic on Lorne. Given his position in the crosswalk, the plaintiff was entitled to assume that a motorist would give way to him. He could only be found to be careless for his safety if he had stubbornly insisted on maintaining his right?of?way in the face of knowledge that an oncoming motorist was behaving in a way that indicated the motorist would not yield to him. Had the plaintiff been looking at the defendant, he would not have seen anything about her behavior that would have led him to believe that she would not yield to him. That is because he would have seen her move from the stop line on 3rd to the thin white line and stop again while looking over her left shoulder. No one in the plaintiff’s position would have had a reasonable suspicion that the defendant, whose driving up to that moment had been careful and considerate, would nevertheless go forward without first looking at where she was going.

[49] In short: the defendant’s behavior ahead of the collision was not such as to put a reasonable pedestrian in the plaintiff’s position on notice that the defendant was not going to yield to the pedestrian. That hypothetical pedestrian would have reasonably assumed that if the defendant was careful to check for traffic before entering Lorne, she would likewise be careful to look in front of her before she put her car in motion and moved out onto Lorne. Nothing in the evidence suggested that the plaintiff ought to have appreciated that the defendant would do as she did.

[50] Consequently, I find that the collision was entirely the fault of the defendant.

Medical Record Relevance To Be Determined on Entry by Entry Basis

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


Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, finding that in the context of personal injury claims, the relevance of clinical records should be determined on an entry by entry basis.
In last week’s case (Hyvarinen v. Burdett) the Plaintiff claimed permanent physical disability as a result of a 2008 collision.  In the course of the litigation the Defendant requested various records the Plaintiff refused to produce.  A court application was brought resulting in mixed success with some of the withheld documents being ordered to be produced.  In adjudicating the matter Master MacNaughton provided the following sensible reasons addressing the vetting of irrelevent medical records:

[18] While I accept that when a document is produced by a party, it should generally be produced in its entirety, the exception is where a party is able to establish a good reason for a document not to be produced. In North American Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC), Justice Lowry, then of this court, reiterated the general principle but said:

…But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purposes in resolving the issues. (para. 13)

[19] In this case, there are two reasons why the general rule about redacted documents should not apply. The first is because the documents sought in unredacted form are not, although generally listed as such, single documents. Rather, they are a series of records compiled over time from a number of interactions with the plaintiff. These records should not be approached globally as if they were a single document. Each entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action.

[20] Second, and importantly in this case, the court must be careful not to unnecessarily infringe on the plaintiff’s privacy interests. Recently, in Kaladjian v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a plaintiff’s privacy interests in a personal injury action. He said:

Every individual’s health and the medical treatment of it is a personal and private matter that should not be lightly interfered with. In today’s world of medical specialization, disclosure of even the name of a medical professional consulted by an individual for reasons wholly unrelated to a defence plea of a prior existing condition is an unwarranted and unnecessary invasion of privacy. (para. 75)

The Mystery of the Vanishing Blog Posts…

Written by admin on . Posted in Uncategorized.

If you regularly follow this blog you may have noticed my burst of activity today is nothing more than a re-posting of a handful of articles I published earlier this week.  Apparently my web hosting company experienced  a server problem resulting in several lost posts.  Fortunately, thanks to some quick help from Steve Matthews of Stem Legal I was able to retrieve (and repost) these lost articles.
To my frequent readers, sorry for the re-posts.  To Steve, thank you!

"Genuine Sympathy" Not Enough to Move Away From Loser Pays Consequences

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


As previously discussed, a Plaintiff’s financial circumstances is not relevant when assessing “loser pays” costs consequences following trial in the BC Supreme Court (subject to the different analysis that applies when pre-trial formal settlement offers have been made).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Staley v. Squirrel Systems of Canada Ltd.) the Plaintiff sued the Defendant for damages due to alleged wrongful dismissal.  The claim was dismissed at trial.  The Defendant applied for costs to be paid with the Plaintiff opposing arguing, in part, that his poor financial circumstances should preclude such a result.  Mr. Justice Williams disagreed and ordered that the Plaintiff pay the Defendant’s costs.  In doing so the Court provided the following reasons:
[17] Regrettably, I find myself unable to accede to the plaintiff’s submissions. The Rule with respect to costs is quite fundamental. While there is some latitude for judicial discretion, the authorities make abundantly clear that the discretion must be exercised in a principled and, I would conclude, cautious manner. Deviation from the basic principle that a successful litigant shall recover must necessarily be carefully constrained…

[21] The third basis for his application is that he is unemployed and experiencing difficult financial circumstances.

[22] While no evidence is before the Court to establish precisely what his present situation is, I will accept that it is not good. I have genuine sympathy for this plaintiff. I am sure that the requirement to pay costs to the defendant will be a real burden for him in his circumstances.

[23] Indeed, I expect that it is frequently the case that there are substantial discrepancies between the means of parties to litigation. Unsuccessful litigants are not infrequently in difficult financial straits, and orders for costs can exacerbate that situation.

[24] However, I am unable to conclude that an order requiring him to pay the defendant’s costs, in accordance with the relevant tariff, $11,000, would be so “unfair and inappropriately punitive” to make the order sought. There are no special circumstances in this case which warrant an order for reduced costs or relieving the plaintiff from paying the defendant’s costs.

No Negligence For Crash Following Tree Suddenly Falling on Roadway

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, following a summary trial addressing negligence for a collision which occurred after a tree suddenly fell onto a roadway.
In this week’s case (Waters v. Mariash) the Plaintiff was involved in a collision after a cottonwood tree “suddenly fell across the the highway, cutting off both lanes“.  The Plaintiff was in the curb lane and struck the tree.  The Defendant was driving in the inside lane a few car lengths behind the Plaintiff.  He hit his brakes, his vehicle fishtailed and hit the tree and the Plaintiff’s vehicle.  The Plaintiff argued the Defendant was negligent but the Court disagreed dismissing the claim against him.  In doing so Madam Justice Humphries provided the following reasons:
[7] The defendant said on discovery that he was about 100-150 feet away from the tree when he started to brake.  He said he had switched into the fast lane to avoid the merging traffic from 176th Street, and had been travelling about 100 kph in a zone posted at that speed.  He reduced his speed to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he put on his engine brake and downshifted, breaking and beginning to slide a little on the wet pavement.  His tires were brand new Michelins…

[15] The accident occurred on a heavily travelled freeway near between Vancouver and Surrey.  While there is always the possibility of obstructions on such a highway, such as an animal or a child dashing out, it would be a very remote possibility in such a location.

[16] The accident was not the result of an obstruction such as branches or debris that one might expect in a wind storm and that would be there to be seen if one were travelling at a reasonable speed.  This accident occurred because a tree fell suddenly in front of both vehicles, blocking both lanes.  Both vehicles hit the tree.

[17] This is not similar to a situation where a driver is travelling in the winter and is expected to cope with unexpected icy patches (according to the Court of Appeal in Redlack v. Vekved, supra, but perhaps not inHearn v. Rowland, supra).  There is no evidence from which an inference could be drawn that the defendant in this case was driving beyond his own competence or that of his vehicle.  He was travelling below the speed limit.  He was faced with an unexpected event that could not be anticipated and he reacted reasonably.  The other options suggested by the plaintiff are not reasonable in these exigent circumstances, and may have been even more dangerous.

[18] According to Hearn v. Rowland, the defendant does bear a heavier onus if he asserts a defence of inevitable accident, but not if he seeks to show, as in this case, that the accident happened without any negligence on his part.  The onus is therefore on the plaintiff to show that the accident occurred as a result of the defendant’s negligence.  I am not persuaded that he has done so.

[19] The action against the defendant Mariash is dismissed, with costs at Scale B.

BC Court of Appeal: Past Capacity Awards Permissible Even Where Wage Loss Fully Mitigated

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

Important reasons for judgement were released yesterday by the BC Court of Appeal holding that an award for past diminished earning capacity can be made even when a plaintiff has fully mitigated their past wage loss.
In yesterday’s case (Ibbitson v. Cooper) the Plaintiff worked in the logging industry as a heli-faller.   He was injured in a collision and these injuries disabled him from his own occupation.  Despite this he was able to keep working in an alternate occupation which paid less.   By working longer hours at the lesser hourly rate the Plaintiff fully mitigated his past loss of income.  At trial the Court awarded the Plaintiff $95,000 for past diminished earning capacity.  The Defendant appealed arguing no award should have been made as there was no past wage loss.  The BC Court of Appeal disagreed and upheld the award.  In doing so the Court provided the following reasons for judgement:
[14] The issue on appeal may be stated in this way – did the trial judge err in giving an award for past loss of earning capacity in circumstances where the plaintiff had fully mitigated his loss of income but where the circumstances of his replacement employment required him to work longer hours?…

[19] While in many cases the actual lost income will be the most reliable measure of the value of the loss of capacity to earn income, this is not necessarily so. A hard and fast rule that actual lost income is the only measure would result in the erosion of the distinction made by this Court in Rowe: it is not the actual lost income which is compensable but the lost capacity i.e. the damage to the asset. The measure may vary where the circumstances require; evidence of the value of the loss may take many forms (see Rowe). As was held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and reasonableness of the award must be considered taking into account all the evidence. An award for loss of earning capacity requires the assessment of damages, not calculation according to some mathematical formula.

[20] In this case, the respondent clearly suffered as a result of the accident; he can no longer perform the job he was engaged in prior to the accident. He has suffered a pecuniary disadvantage as he needs to work longer hours to maintain his approximate pre-accident level of income.

[21] The trial judge considered pre-trial earnings both before and after the accident, explaining that calculating a precise value for the extra hours was a difficult task, and chose to assess the damages “at large”. Had Mr. Ibbitson worked the same amount of hours post-injury as he had pre-injury, he surely would have been found to have suffered a compensable loss of earning capacity. His entitlement to such damages does not disappear due to his industrious efforts to maintain his level of income, exceeding his legal requirement to mitigate. I agree with the trial judge’s conclusion and analysis.