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Motorist with Right of Way Found 40% at Fault For Intersection Crash

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

UPDATE – June 12, 2013 -the below decisions addressing liability was upheld by the BC Court of Appeal.  The matter was set back to the trial judge, however, because the BCCA concluded the trial judge made a palpable error when assessing damages)
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As discussed earlier this week, having the right of way is only one factor which determines fault for a collision.  A motorist with the right of way still needs to maintain a proper lookout otherwise they can share fault for a collision.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, in the context of an intersection crash.
In this week’s case (Sangha v. Chen) the Plaintiff was driving northbound on Willow Street in Vancouver, BC.  As he entered an intersection the Defendant, who was faced with a stop sign, came through a side street resulting in a collision.

Although the Plaintiff had the right of way both motorists were found at fault.  In assessing fault at a 60/40 split Madam Justice Boyd provided the following reasons:

[34]In the case at bar, I am satisfied that Chen stopped at the stop sign, that she moved forward to check for northbound traffic and that, finding there was none, she began to move out into the intersection.  Unfortunately from that point forward she simply proceeded forward in her slow course across the intersection, without keeping any continuing lookout for oncoming northbound traffic.  Chen did not, therefore, become the dominant driver.  While she stopped and yielded to traffic, she failed to proceed with caution.  This was also a breach of her common law duty to other users of the highways because she clearly failed to meet the standard of care as set out by Lambert J.A. in Carich v. Cook: “care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime”.

[35]For his part, I am satisfied that the plaintiff was likely travelling over 30-40 kph, although perhaps still within the speed limit.  Contrary to his evidence, I find that at the last moment, he did (perhaps even unconsciously) see the defendant’s vehicle and did slam on the brakes momentarily (accounting for the initial jerking motion Dr. Temple experienced).  While he could not avoid hitting the defendant’s vehicle (which by this time was in his lane of traffic), his vehicle effectively came to a stop on impact, although rotating somewhat to the right in a counter-clockwise direction.

[36]While the plaintiff may have remained the dominant driver, he had a duty to exercise reasonable care even if those around him did not respect his dominant position.  He clearly did not exercise reasonable care as he failed to keep a proper lookout.  The fact the defendant proceeded slowly across the intersection and that the collision occurred on the far side of the intersection convince me he should have seen the plaintiff earlier.  Had he kept a proper lookout he would have seen her vehicle earlier than he did and thus could have applied his brakes to avoid the collision.  But he had not kept a proper lookout and the accident ensued.

[37]In determining the division of liability, the court is to consider the relative responsibilities of the parties for the accident: Salaam, para. 35-38.  This is not a case similar to Amador, Ryonand Salaam where one driver saw the other and made a decision to proceed in a certain manner, while the other driver failed to see them and keep clear.  Here, neither driver saw the other prior to impact when the circumstances are clear that they should have.  Liability must therefore be shared more evenly.  That being said, while both parties failed to keep a proper lookout, and failed to see what was there to be seen, the defendant, as the servient driver, had a higher standard of care and the plaintiff, to a certain extent, was permitted to expect servient drivers to respect his dominant position.  Thus the negligence of Chen contributed more to the accident than that of the plaintiff.

[38]In all the circumstances I find that the defendant is primarily liable for this collision.  In this case, I would divide liability 60% against the defendant and 40% against the plaintiff.

Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 14, Uncategorized. 2 Comments on Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim


(Update October 2, 2012 – The below post was upheld on appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing reasonable photocopy expenses in a bill of disbursements.
In the recent case (Chow v. Nguyen) the parties could not agree to the reasonableness of various disbursements incurred in the prosecution of a personal injury claim.  In the course of the lawsuit the Plaintiff’s lawyer made 7,231 photocopies and claimed disbursements at $0.25 per copy.  ICBC argued this was unreasonable.  Master McDiarmid disagreed and allowed this disbursement as presented.  In doing so the Court provided the following reasons:

[4]Counsel for the defendant and third party also objected to the photocopy charges. She accepted plaintiff’s counsel’s representation that the 7,231 photocopies were in fact made. There was no argument that the photocopying was not necessary or proper; rather, the argument was that the 25¢ per page was excessive given the actual cost of photocopying. When assessing costs, a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceedings, and I must allow a reasonable amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil Rules (the “Civil Rules”)).

[5]Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010 directs that photocopying charges may be allowed at 25¢ per page on a party/party bill of costs. This amount is a guideline only. If it is shown that the actual cost was or should have been different from the guideline charges, the amounts allowed on an assessment may differ from the guideline amounts.

[6]The actual cost of photocopying is difficult to determine, in as much as it involves a combination of fixed costs, per page costs, and labour costs. There was no evidence before me to show what the actual cost was. I find that in the circumstances of this case, the number of photocopies was both necessary and proper, and I allow the photocopying charges as claimed in the amount of $1,807.75, plus applicable taxes.

This case is also worth reviewing for the Court’s discussion of document binding charges (dismissed as overhead) and the cost of fairly expensive expert reports which were allowed as being reasonable given the circumstanses of the case.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

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

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.

Driver 25% at Fault for Striking Jaywalking Pedestrian

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 54 Comments on Driver 2554 at Fault for Striking Jaywalking Pedestrian

As previously discussed, having the right of way is not determinative of fault for a collision.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this in the context of a pedestrian crash.
In last week’s case (Murdoch v. Biggers) the Plaintiff was crossing Blanshard Street in a marked cross-walk.  She did so against a red light.  There were 3 oncoming through lanes of travel.  The vehicles in the first two lanes stopped for the jaywalking Plaintiff.  The vehicle in the third lane did not stop in time and collided with the Plaintiff resulting in a broken right leg.

The Court found that while the motorist had the right of way they shouldered some of the blame for failing to keep a proper lookout.  In assessing the Plaintiff 75% at fault and the Defendant 25% at fault Madam Justice Power provided the following reasons:
[33] In this case, I do not believe that the defendant exercised the appropriate standard of care to avoid breaching that duty. The drivers in vehicles in the two lanes to her right were able to observe and stop for the plaintiff, and a driver behind her (Ms. Larson) was able to see Ms. Murdoch. Mr. Lukinuk was able to observe that something was happening in his rear-view mirror. In the circumstances, I find that the defendant failed to keep a proper lookout by failing to observe Ms. Murdoch’s entry into the crosswalk and by failing to observe that vehicles in the two lanes to her right had stopped for Ms. Murdoch. I find that if the defendant had in fact been keeping a sufficient look out, she would have been able to stop for Ms. Murdoch and avoid the collision…
[36] In all of the circumstances, I conclude that the 75% of the fault for the accident should be borne by the plaintiff and 25% by the defendant.

Verbal Agreements Can Create Binding Settlements of Injury Claims in BC

Written by admin on . Posted in Settlement Law, Uncategorized. 105 Comments on Verbal Agreements Can Create Binding Settlements of Injury Claims in BC

While this is certainly not a new legal development (you can click here to access my archived posts addressing this topic) reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming yet again that a verbal agreement can create a binding injury claim settlement and that refusing to sign the appropriate closing documents does not create an escape route for a litigant that regrets their decision.
In this week’s case (Robertson v. Whistler (Resort Municipality)) the Plaintiff was injured when she fell in a shower owned by the Defendant.  She was 8 years old at the time.  She started a lawsuit when she was 20.  In the course of the lawsuit the Defendant made a global settlement offer of $1,400.  The Plaintiff, in a phone conversation with the Defendant’s lawyer stated that she “wished to accept the $1,400 offer“.
The Plaintiff later refused to sign an agreed to Consent Dismissal Order.  The Plaintiff testified that “until she signed the offer and signed the order, there was no settlement“.  Madam Justice Hyslop disagreed and dismissed the lawsuit finding there was a binding settlement.  In addition the Court awarded the Defendant costs from the date of the settlement onward (which could result in the Plaintiff owing the Defendant money).
In confirming that a binding settlement was reached with the verbal agreement the Court provided the following reasons:

[31] Contract law applies to settlement agreements provided no contractual grounds to set aside the contract exist. Example: mutual mistake, lack of capacity, duress or fraud: Robertson v. Walwyn Stodgell Cochrane Murray Ltd., [1988] 4 W.W.R. 283, 24 B.C.L.R. (2d) 385.

[32] Settlement agreements need not be in writing to be enforceable. This was recognized in Sekhon v. Khangura, 2009 BCSC 670.

[33] Even if the oral agreement contemplates that it be reduced to writing, it is still enforceable: Young et al v. Fleischeuer et al, 2006 BCSC 1318. A party may decide not to pursue certain heads of damages as claimed and a settlement may be reached without addressing that particular head of damage: Prasad v. Ho, [1992] B.C.J. No. 643…

[47] The plaintiff changed her mind and repudiated the settlement as a result of the reaction of her father and the involvement of her aunt, Ms. MacDonald.

[48] I conclude that on December 16, 2010, the plaintiff entered into a binding settlement agreement. This action is dismissed with costs awarded to the defendant upon the basis that the sum of $1,400.00 due to the plaintiff will be set-off against the defendant’s assessed costs. Costs will be assessed under Appendix B, Scale B of the Supreme Court Civil Rules.

$40,000 Non-Pecuniary Assessment for "Longstanding" Soft Tissue Injuries Caused by Impaired Driver

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, assessing damages for long standing soft tissue injuries.
In this week’s case (Hahn v. Barnes) the Plaintiff was injured in a 1998 collision.  He was 5 years old at the time sitting as a passenger in a vehicle that was rear-ended by the Defendant.  The Defendant was found fully at fault with the Court noting that she was “under the influence of alcohol and not paying attention to her driving“.
The Plaintiff was 19 by the time of trial and testified that he sustained injuries to his neck and back and that his symptoms carried on since the collision.  The Court accepted this evidence and assessed non-pecuniary damages at $40,000.  In doing so Mr. Justice Tindale provided the following reasons:

[71] Credibility is the central issue in this case. I have had an opportunity to view the plaintiff, his mother, his father and his soccer coach Mr. Pohl give evidence. I accept that they are all honest witnesses. There are no notations regarding the back problems of the plaintiff in the clinical records of Dr. McKinley. Unfortunately, Dr. McKinley is not here to give evidence regarding the accuracy of his clinical records. I accept the evidence of the plaintiff, Sharon Hahn, and Keith Hahn regarding the plaintiff’s back symptoms. I find the plaintiff’s back symptoms are from the motor vehicle accident on June 16, 1998.

[72] I also accept the plaintiff’s, Sharon Hahn’s and Keith Hahn’s evidence relating to the neck symptoms. The plaintiff clearly had neck pain after the accident and there was some radiographs suggesting pre-cervical soft tissue swelling at the time of the accident. I find that the plaintiff’s neck symptoms are from the motor vehicle accident of June 16, 1998. I also find, given the evidence of doctors Dommisse and Travlos, the plaintiff’s neck and back symptoms can be defined as chronic in nature…

[76] In this case, the plaintiff is young, and has a long standing neck and back injury. However, the plaintiff’s injuries are not severe or disabling. I do not have any evidence that the injuries have caused the plaintiff any emotional suffering…

[78] An appropriate award for Non-Pecuniary damages, given the length of the plaintiff’s symptoms and the nature of the neck and back strain, is $40,000.

"Some Things Cannot Be For Sale" – BC Supreme Court Benchslaps Attorney General

Written by admin on . Posted in Tort Reform, Uncategorized. 55 Comments on "Some Things Cannot Be For Sale" – BC Supreme Court Benchslaps Attorney General


(UPDATE  February 15, 2013 – The decision discussed below was overturned by the BC Court of Appeal in reasons for judgement released today)
I recently highlighted on-going friction between the BC Government and our Judiciary.  In the latest chapter of this story, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, striking down Court “hearing fees” and providing strong criticism to the Government with respect to their constitutional duty to properly maintain Superior Courts.
Included in Mr. Justice McEwan’s robust reasons for judgement (Vilardell v. Dunham) was the following constitutional lesson to Government:
(1)  Access to the s. 96 courts is a fundamental premise of the constitutional arrangement of Canada which cannot be materially hindered by anyone (BCGEU), including either Parliament or the legislatures, just as public and political discourse may not be abrogated by law (Alberta Reference).
(2)  The mandate of the Province under s. 92(14) is to maintain, that is, to provide adequately for, the courts.  It does not include the power to legislate in a manner that impairs the court’s ability to fulfill its proper role in a democracy.  This responsibility is of precisely the same importance as the responsibility of governments to maintain the functions of legislatures and the executive branches of government.  As a constitutional responsibility, the maintenance of the superior courts does not compete with the government’s discretionary expenditures.
(3)  Hearing fees are a barrier to access imposed by one branch of government over another.  For the reasons I have set out, this creates a constitutionally untenable appearance of hierarchy.  The court cannot fulfil its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents.  In this respect, the AGBC’s position that so long as the government does not interfere with he cases the court is permitted to hear judicial independence is respected, is an inappropriately constricted view of the court’s constitutional place.  So is the notion that it may tell the public, whose interests may occasionally be adverse to those of government, that for them the courts are a “valued but last resort”.  Courts must be available to the public on precisely the same basis as they are available to government: as a place they are free to attend when they seek a authoritative determination of a right or legal position according to law.  Going to law is not a form of failure or an act of deemed unreasonableness: it is better understood as an affirmative act of faith in the authority of the law.
(4)  The AGBC’s anxious concern for trial efficiency is misplaced.  Courts of inherent jurisdiciton are equipped with all the tools they need to manage trials and to deter time wasting, and they use them.  It is an incursion upon judicial independence for the government to purport to influence the courts by manipulating fees…
[426]…The office of the Attorney General also fulfils an essential role in the protection of the public interest, which includes concern for the rights of disadvantaged and the vulnerable.
[427] The Attorney General has a further role to play in explaining the function of the courts to government.  The preservation of the core values of our Constitution including inclusiveness, equality and citizen participation are entrusted to the Attorney General as much as they are to the Courts…It is therefore a matter of serious concern that the Attorney General has come to this Court with a submission that appears so dismissive of these fundamental aspects of our system of government…
[429]  …The position taken by the AGBC in this case has shown not merely an error in its approach to an aspect of financing the courts, but a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate under s. 92(14) of the Constitution Act, 1867.
[431]  The Court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees.  Some things cannot be for sale.

Facebook Photos Fail to Thwart ICBC Injury Claim

Written by admin on . Posted in ICBC Privacy Issues, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As previously discussed, Facebook photo production is becoming a common occurrence in personal injury litigation.   Despite the undesirable consequences on privacy expectations it is worth remembering that such photos, much like more conventional surveillance evidence, are not necessarily harmful in and of themselves.  Surveillance evidence is only damaging to a personal injury claim when it depicts activities inconsistent with the Plaintiff’s evidence.  Photographic evidence that does not reach this threshold is really of little value.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Guthrie v. Narayan) the Plaintiff was injured in a 2009 rear-end collision.  She suffered from chronic soft tissue injuries which were expected to cause on-going problems into the future.  At trial the Defence introduced Facebook photos depicting the Plaintiff on a trip to Las Vegas.  Mr. Justice Goepel found these to be of little value and assessed non-pecuniary damages at $65,000.  In doing so the Court provided the following reasons:

[27] I accept the testimony of Dr. Cordoni and Dr. Badii. I find that Ms. Guthrie sustained soft tissue injuries to the neck and back as a result of the motor vehicle accident. These soft tissue injuries have led to chronic neck and shoulder pain. I find that it is unlikely that there will be any significant change in her condition for the foreseeable future.

[28] I further find that Ms. Guthrie has aggressively attempted to deal with her injuries. She has followed the medical recommendations made to her. She has attended physiotherapy and message therapy. She took a series of painful IMS treatments. She works out regularly. She has done all she can to assist in her recovery.

[29] Unfortunately, however, Ms. Guthrie’s injuries have not resolved. They continue to seriously impact her daily life and will likely do so for the foreseeable future. The injuries have affected all facets of her life. She needs accommodation at work, cannot partake in some sports she formerly enjoyed, must avoid certain social events and even has difficulty when she attempts to cuddle with her boyfriend. She is no longer suited for many occupations and requires accommodation to carry out many of the occupations that are still available to her.

[30] In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident…

[35] While the subject cases are of general assistance and provide a guideline as to the range of damages awarded in cases with some similarities to the case at bar, each case must be decided on its own facts. Of primary importance in this case is the age of the plaintiff, the manner in which the injuries have impacted on her life, and the medical evidence which suggests that any future improvement is unlikely. I note in the cases cited by the defendant the prognosis for the plaintiffs was much more favourable than that concerning Ms. Guthrie. I award $65,000 in non-pecuniary damages.

$50,000 Non-Pecuniary Assessment for Soft Tissue Injuries "Superimposed on Other Problems"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In last week’s case (Sharifi v. Chaklader) the Plaintiff was involved in a 2008 collision in Vancouver BC.  She was a passenger in a van travelling through an intersection when it was struck by a left hand turning driver.  The Defendant was found fully liable for the crash.  The Plaintiff had some pre-existing problems and the collision superimposed soft tissue injuries on these.  These remained symptomatic at the time of trial.  Despite some concerns with the Plaintiff’s evidence the Court assessed non-pecuniary damages at $50,000.  In doing so Mr. Justice Willcock provided the following reasons:

[99]Weighing the evidence as a whole, I find that Ms. Sharifi suffered a musculoligamentous soft tissue injury to her cervical spine, upper back and shoulders on July 10, 2008.  Those injuries were superimposed on a pre-existent left shoulder injury and on some pre-existent neck pain.  Additional pain and suffering following the motor vehicle accident did not cause, but must have contributed to, the level of her ongoing stress and anxiety, and contributed to her tendency to suffer from migraine headaches.  The injury sustained in the motor vehicle accident has continued to trouble her since; it has affected her capacity to enjoy life, and caused her to suffer an income loss.

[100]On a balance of probability I cannot find Ms. Sharifi suffered a concussion or an injury to her low back.  Nor am I satisfied on the evidence that she has established she has suffered or is likely to suffer from post-traumatic degenerative osteoarthritis as a result of the soft tissue injury sustained in the July 2008 accident…

[103]Damages must be assessed on the basis that the plaintiff has suffered a soft tissue injury superimposed on the other problems documented in the records: a history of some neck pain, a left recurrent shoulder injury that limited her ability to lift, occasional migraine type headaches, stress, anxiety, fatigue and depression-like symptoms (but not clinical depression).  Damages must be assessed on the basis some continuing recovery is probable.  The functional impact of the injury is overstated by Ms. Sharifi.  She is capable of most activities of daily living. I am not satisfied she has established that she is disabled from clerical employment…

[119] …I assess non-pecuniary damages in this case at $50,000.