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FCA and Tort Claim Limits Under ICBC's Underinsured Motorist Protection

Written by admin on . Posted in ICBC UMP Cases, Uncategorized.


An ICBC UMP decision has recently been provided to me dealing with the amount of coverage available under UMP when a claimant has the right to advance a tort claim and a Family Compensation Act claim arising from the same collision.
This decision was released well before the 2007 amendment requiring UMP Arbitration decisions to be published publicly on ICBC’s website.  I summarize the decison to add it to this public and searchable UMP Claims Database.
In the 1996 case, (CCK v. ICBC) the Claimant was severely injured in a collision.  She suffered a spinal cord injury rendering her a paraplegic.  Her mother was killed in the same collision.  The at-fault motorist was underinsured for all of the civil claims flowing from the crash.  The Claimant was entitled to damages not only for her own injuries but also as a beneficiary under the Family Compensation Act for the death of her mother.
The arbitrator had to decide whether the Claimant could access $1 million in UMP Coverage in her tort claim along with an additional $1 million in coverage for her FCA claim or whether both claims were covered by a single limit.  Arbitrator Schmitt provided the following reasons:
If CCK had been injured but had not lost her Mother, she would, of course, under section 148.1(2) be entitled to compensation under UMP coverage.  In this case she was insured and she lost her Mother so she is an insured under not one but two of the definitions.  What ICBC is arguing is that she is entitled to UMP coverage for her injuries and loss of her Mother but only under her own million dollars coverage…
In the case of CCK, she happens to be insured under two different definitions and she will be entitled to the benefits of her UMP coverage for both her claims up to the $1,000,000 limit…
The Mother’s estate is likewise entitled to the benefit of UMP coverage up to $1,000,000 but the Mother’s estate claims do not include the claims of survivors under the Family Compensation Act which belong specifically to those survivors…
The estate’s coverage is available to cover claims by the estate itself which may be advanced under the Estate Administration Act.  Insofar as CCK or her grandmother may be entitled to receive some or all of the proceeds of the estate as a beneficiary they may directly benefit from such coverage.  Otherwise CCK is entitled to the benefit of her own UMP coverage of $1 million with respect to her claim for personal injuries and her claim for damages under the Family Compensation Act.
This case should be contrasted with a subsequent Court of Appeal decision in 2007 (Lougheed v. Co-operators General Insurance Company)  which upheld the following trial judgement reasons finding that the ‘insured‘ in an FCA claim brought following a collision is the personal representative of the estate of the deceased and that all beneficiaries of such an FCA claim are subject to the representative’s single policy limit:

[85]  The issue, then, is how one ought to read the definition of “insured” in s. 148.1(1)(c), bearing in mind the scope of coverage granted by s. 148.1(2).  But for his death, Mr. Lougheed would have received UMP coverage by operation of s. 148.1(1)(a).  As a result of his death, the “insured” is “a person who…is entitled to maintain an action” because of Mr. Lougheed’s death.  The “action” refers to the family compensation claim that may be commenced under the FCA by the personal representative on behalf of all of the beneficiaries, or by the beneficiaries if it is not commenced by the personal representative.  In either case, however, the action must be treated as though it had been brought by the personal representative.  It is a single cause of action brought on behalf of all of Mr. Lougheed’s beneficiaries.

[86]  It follows, in my view, that the “insured” in s. 148.1(1)(c) must be the personal representative, who is the individual entitled, either directly or indirectly, to maintain a family compensation action as a result of the death of the primary insured, Mr. Lougheed.  That interpretation is consistent with the grant of coverage provision, which limits the recovery of benefits to those otherwise accruing to the deceased insured.

[87]  In the result, the UMP coverage limit is not $1 million for each beneficiary of a family compensation action, but $1 million for the beneficiaries of the action as a whole.  The plaintiffs, all beneficiaries, are entitled collectively to the $1 million of UMP coverage that would otherwise have been available to the deceased, Mr. Lougheed.

Late DME Application Dismissed; Responsive Exam Limitations Discussed

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.
In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.
In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:
[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…
[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.
[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22
“In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4)”
Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

“Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.
[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:
“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”
[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.
[18]  The application is dismissed.
As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.

Funding Legal Aid – Does the Government Have its Priorities Straight?

Written by admin on . Posted in Uncategorized. 52 Comments on Funding Legal Aid – Does the Government Have its Priorities Straight?


If you have a limited budget to support Legal Aid, who would you let access the funds, the poorest sector of society or the wealthiest?  You would think the answer is obvious but BC’s track record may just go against common sense on this issue.
The Government is receiving some heat from the Trial Lawyers Association of BC’s current campaign regarding the state of Legal Aid funding in BC.  In short the TLABC points out that Legal Aid in BC is “a seriously underfunded system.  The current and long-time lack of legal aid leaves too many people in need of help, and the lawyers involved have been working in a crisis situation for far too long“.
The Government of BC has recently announced that they will commit an additional $2 million in funding to the system.  This is a far cry from what’s needed to restore the system to functioning levels.  The concerns are not just coming from the TLABC but also the judiciary with the Chief Justice of the BC Supreme Court stating that prolonged underfunding has possibly put the judicial system “in peril“.
This leads to the question of whether the money to properly fund Legal Aid is simply not available or whether the Government’s priorities lie elsewhere.  A good argument can be made for the latter given the Government’s choices for funding access to justice.
Despite the poor shape of BC’s legal aid system, The Government finds money to help some of the highest income earners with their legal costs.  I’m referring to the Canadian Medical Protection Association fee subsidy.
For those of you not familiar with the CMPA, they are a group that “provides professional liability protection for Canadian physicians in the form of advice and legal assistance“.  In other words, they defend civil suits against doctors in cases of alleged professional negligence.
As with any liability insurance, CMPA protection costs money.  The fees doctors pay for their professional liability insurance vary depending on practice area but overall are not particularly high.  These can be found here.   What you may not know is that the BC Provincial Government reimburses these dues to a significant extent.  Specifically the BC Government rebates “the difference between the current year CMPA dues and the dues for the base year 1985“.  That is, they pay the value of over 25 years of inflation.
So how much money are we talking about here?  I don’t have the current numbers but in 2008 the Victoria Times Colonist reported that “The B.C. government funnelled nearly $53 million through the B.C. Medical Association to the CMPA over the last three years“.
The CMPA, from a financial perspective, has done very well over the years.  They have accumulated over $3 billion in investment assets according to their 2010 report.  In fact, the CMPA reports that their financial position is so strong that “Excluding the funds committed to capital assets and a risk retention reserve fund, this leaves the Association holding $572 million in unrestricted net assets.“.  That’s over half a billion dollars of “unrestricted” assets.
As a BC taxpayer I can’t help but ask myself who is a better beneficiary of the $50 plus million dollars the Government has used to subsidize liability insurance dues, the CMPA with half a billion dollars in unrestricted net assets, or the folks who qualify for the below financial test for legal aid in BC:

As always, comments and feedback are welcome.

Employer Paid Wage Replacement Benefits Non-Deductible in Hit and Run Claims

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 51 Comments on Employer Paid Wage Replacement Benefits Non-Deductible in Hit and Run Claims

Section 106 of the Insurance (Vehicle) Regulation permits ICBC to reduce compensation by any amount paid by another “insured claim” in claims for injuries caused by unidentified motorists or uninsured motorists under section 24 and section 20 of the Insurance (Vehicle) Act .  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing whether wage loss benefits paid by an employer are an ‘insured claim‘.  In short the Court held that they are not.
In last week’s case (Loeppky v. ICBC) the Plaintiff, a police officer, was injured in a hit and run collision.  ICBC accepted the crash was caused through the fault of an unidentified motorist.  The Plaintiff sought compensation for his damages including past wage loss.  During his time away from work his employer paid him wage replacement benefits.  ICBC argued these payments were an ‘insured claim‘ and therefore had to be deducted from his ICBC claim.  Madam Justice Grey disagreed and refused to make the deduction.  The Court provided the following reasons:

[83] In my view, Mr. Loeppky’s wage replacement benefits do not constitute an “insured claim” under s. 106 of the Regulation, and therefore may not be deducted from Mr. Loeppky’s award.

[84] In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277 (B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum of money advanced by an employer to an employee that had to be repaid in the event of any recovery did not qualify as a benefit under the predecessor of s. 106.

[85] More generally, in Lopez v. Insurance Corporation of British Columbia (1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the court at para. 21, held that an “insured claim” for the purposes of the Regulations must still import at least some element of insurance. He went on conclude that payments made by reason of a contract of employment, without some evidence that they originate from an insurer, do not possess such an element of insurance.

[86] The sum of $6,804.77 was paid to Mr. Loeppky under the collective agreement between the Vancouver Police Union and the Vancouver Police Board. Under the terms of that agreement Mr. Loeppky must repay that amount if he recovers it in this action. There is no evidence that the payments originated from an insurer. Thus, it is not an insured claim under s. 106 and the defendant is not entitled to deduct it from any award.

Affidavits: A Reminder Not to Assume, Comment or Argue

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized. 171 Comments on Affidavits: A Reminder Not to Assume, Comment or Argue


Affidavits need to comply with the same rules that govern admissibility of evidence at trial.  Failure to do so can result in portions of affidavits being struck.   Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last month’s case (Haughian v. Jiwa) the Plaintiff was injured in a motor vehicle collision.  During a summary trial the Plaintiff introduced an affidavit from a witness who supported the Plaintiff’s version of events regarding the circumstances of the crash.  The affidavit, unfortunately, violated several evidentiary rules and the Defendant objected to its admission.  In striking portions of the affidavit the Court provided the following reasons:

[15] Rule 22-2(12) and 22-3(13) provides:

(12)      Subject to subrule (13), an affidavit must state only what a    person swearing or affirming the affidavit would be permitted to state in evidence at a trial.

(13)      An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a)        the source of the information and belief is given, and

(b)        the affidavit is made

(i)         in respect of an application that does not seek a final order, …

…

[16] As noted in Chamberlain v. Surrey School District # 36 (Surrey) (1998), 168 D.L.R. (4th) 222, 85 A.C.W.S. (3d) 72 (B.C.S.C.), by Saunders J. at para. 15:

[15]      The court has the power to strike inadmissible evidence from affidavits: Evans Forest Products Ltd. v. The Chief Forester of British Columbia (6 April 1995), Vancouver A943891 (B.C.S.C.) [summarized 54 A.C.W.S. (3d) 180].  In practical terms, when there is no time between the application to strike inadmissible evidence and the hearing of the lis, this means portions of filed affidavits are given no weight by the court.

[17] The witness was turning right onto Sunset Street.  He deposes the following in his affidavit (the bold portions are in dispute):

6.         At the time Mr. Jiwa turned left on to Sunset Street from Smith Avenue Southbound, I had been about to turn right onto Sunset Street from Smith Avenue Northbound.  Although I had the right of way to proceed onto Sunset Street, Mr. Jiwa was proceeding anyway so I braked and waited until it was safe to make my turn immediately after Mr. Jiwa made his turn.  Mr. Jiwa cut me off to make his turn and I am very confident that had I been continuing straight northbound on Smith Avenue instead of turning right onto Sunset Street, my vehicle would have been struck by Mr. Jiwa.

7.         I disagree with paragraph 11 of Mr. Jiwa’s affidavit.  It was very clear to me that Mr. Jiwa was in a hurry.  He was driving aggressively and too fast for the area.  He was driving dangerously immediately before the accident.

8.         When I turned onto Sunset Street at almost the same time as Mr. Jiwa, I immediately saw that Ms. Haughian’s vehicle was already in the process of parking.  I am certain that Ms. Haughian was not making a wide turn from the left lane at the time Mr. Jiwa struck her vehicle as Mr. Jiwa states at paragraph 12 of his affidavit.  I disagree that Mr. Jiwa was unable to stop before colliding with Mrs. Haughian’s car.  If Mr. Jiwa had not been speeding he had plenty of time to stop because I noticed the Plaintiff’s vehicle immediately upon turning onto Sunset Street and I was behind Mr. Jiwa.  Since I could see that Ms. Haughian was in the process of parking I cannot understand why Mr. Jiwa could not see that.

…

12.       After the accident, I gave my contact information to Ms. Haughian because I felt that Mr. Jiwa was absolutely the at fault driver.  Mr. Jiwa was driving too fast and could have avoided the accident.

13.       I provided a statement to ICBC on June 17, 2008. Attached hereto and marked as Exhibit “A” to this my affidavit is a true copy of the statement I provided to ICBC.  I do not have an unredacted copy of the statement.  I confirm that the contents of my June 17, 2008 statement to ICBC are true and accurately recount what I observed a the time of the accident.  I disagree only with: firstly that I observed the Haughian vehicle pulling in, and secondly that I referred to Mr. Jiwa as “Indo Canadian”.  As I did not sign the statement, I would have made those changes if I was asked to sign.

[18] The defendant seeks to have the bold portions struck as being hearsay, personal opinion, editorial commentary or argument rather than fact.

[19] The witness should have confined his evidence to facts.  He should not have added his descriptive opinions of those facts (see L.M.U. v. R.L.U., 2004 BCSC 95, at para. 40; Creber v. Franklin, 42 A.C.W.S. (3d) 231, at paras. 19-21).

[20] I agree that the portions of the affidavit that are in bold in paras. 6, 7 and 12 constitute personal assumptions, commentary and argument rather than fact.  However, I am not satisfied that the statements amount to hearsay, as alleged by the defendant.  Paragraph 8 is also struck for the same reasons with the exception of the first two sentences.  Given that the application to strike was concurrent with the hearing of this application, I place no weight on the portions noted when considering the issue of liability.

$50,000 Damage Advance Ordered As Term of Adjournment of Personal Injury Claim

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, ICBC Wrist Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the Court’s power to order a damage advance to a Plaintiff as a term of an adjournment order.
In last week’s case (Wood Atkinson v. Murphy) the Plaintiff suffered bilateral wrist fractures in a 2006 collision.  The Defendant admitted full fault for the crash.  The matter was set for trial but ultimately had to be adjourned due to difficulties in obtaining the Plaintiff’s employment records.  As a term of adjournment the Court ordered that the Defendant pay the Plaintiff a $50,000 advance.  In doing so Associate Chief Justice MacKenzie provided the following reasons:

[42] Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed the jurisdiction of this Court to order advance payments on damages under former Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The advance must be just in all of the circumstances, and the judge making the order must be completely satisfied that there is no possibility the final assessment of damages would be less than the amount of the advance payments. There is no requirement that the cause of the adjournment be the fault of one party, see Serban, at paras. 9-11.

[43] Further guidance is found in the following excerpt from Master Barber’s decision in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:

With liability not being in issue, the plaintiff should be put in funds at the earliest possible time. That is a reasonable thing for the plaintiff to ask for. The only thing that is stopping her from getting this money is not a determination of whether she is entitled to it, but as to how much. When it has been conceded that the sum of $20,000 is probably going to be less than or at least one-half of what the future amount she will obtain of $40,000 plus is, I can see no reason not to give her at least $20,000 at this time. To keep her out of pocket means that, especially when need is shown, as it has been in her affidavit, would be a refusal of justice.

[44] In this case, liability has been admitted, and it will be almost seven years from the date of the accident to the conclusion of the trial. The plaintiff is employed, but has problems with chronic pain in her wrists. Counsel are in agreement that an advance is justified in these circumstances.  The remaining issue is the amount that would be just in the circumstances, ensuring that it not be in excess of the potential award for damages at trial.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

Defence Psychatric Exam Request Dismissed for Being Brought Too Late

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

Reasons for judgment were released last month dismissing an ICBC request to have a Plaintiff examined by a psychiatrist finding that the application was brought too late in the litigation and would unfairly balance the playing field should the Plaintiff need to respond to the examination.
In last month’s case (De Corde v. De Corde) the Plaintiff was injured in a 2007 collision.  She alleged physical injuries, a head injury and also “emotional distress“.
In the course of the lawsuit the Plaintiff agreed to be assessed by three physicians chosen by the Defendant (or their insurer ICBC).  Specifically a general practitioner, a neurologist and an orthopaedic surgeon.  The Defendant brought an application for the Plaintiff to also be assessed by a psychiatrist.  The application was brought with just barely sufficient time to have a report generated to comply with the time lines set out in the Rules of Court.
Master Bouck dismissed the application finding the medical playing field was already balanced and an additional report by a psychiatrist served on the cusp of the deadline set by the Rules of Court would be prejudicial to the Plaintiff.  The Court provided the following reasons:

[37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial.

[38] In this case, there are at least two considerations that compelled the dismissal of the application.

[39] First, there is no basis to suggest that the defendant is at a disadvantage in terms of evidence.

[40] Second, the application is brought so close to trial that the plaintiff might be prejudiced (by the adjournment of the trial) if the order was granted.

[41] This is not a case where a new diagnosis or symptom has arisen since the last independent medical examination. Indeed, much of the information that is relied on by defence in this application was in that party’s possession before the plaintiff attended the examinations by Drs. Wahl and Moll.

[42] The plaintiff’s mental health is commented upon in all of the reports presented to the court. None of the various medical professionals have recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis of the plaintiff’s symptoms differs as between these medical professionals. However, regardless of the diagnosis, all of these professionals suggest a treatment plan. That plan ranges from simple reassurance to medication to counselling to future neuropsychological reassessments…

[45] In short, there is simply no basis to suggest that the evidence presented to date requires a psychiatric opinion in order to “level the playing field”. Experts on both side of this case make certain treatment recommendations that will probably lead to some resolution of the plaintiff’s mental health symptoms. Whether the plaintiff follows those recommendations goes to the question of mitigation.

[46] Another important factor to consider is the timeliness of the defendant’s request, particularly when the opinions of the three defence experts (let alone those of the plaintiff) have been known for several months.

[47] I accept the submission that given the type of specialist involved, the plaintiff would have been hard pressed to answer Dr. Solomon’s opinion in time for trial. Thus, the plaintiff may be compelled to seek an adjournment of the trial which is scheduled to occur nearly five years after the accident. Such a result would hardly be in keeping with a speedy resolution to the claim: Rule1-3.

[48] In considering the question of prejudice, I presumed that Dr. Solomons would be able to comply with the 84-day deadline. But that deadline is not really the issue. It is the deadlines that the plaintiff must meet that leads to the possible prejudice.

[49] The plaintiff need only demonstrate that an adjournment of the trial is a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and 22…

[62] Given the timelines that must be met under SCCR together with the common acknowledgment that psychiatric assessments are not so easily obtained on short notice, there appeared to be a real possibility that the trial would be adjourned to allow the plaintiff to address the defence’ s new expert evidence.

[63] Thus, an order requiring the plaintiff’s attendance at a psychiatric independent examination would result in an inequality of evidence favouring the defence. I have already made the same finding in the case at bar.

"Almost Derisory" Pain and Suffering Award Overturned by BC Court of Appeal

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, Jury Trials, Uncategorized.


Reasons for judgement were released last week by the BC Court of Appeal setting aside a jury verdict and ordering a new trial in a motor vehicle collision injury claim.  The Court found that the Jury’s award for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) was “almost derisory” and not compatible with the other awards made.
In last week’s case (Evans v. Metcalfe) the Plaintiff was injured in a 2006 collision.  The Plaintiff sought substantial damages.  A jury was not receptive to much of the Plaintiff’s claim and awarded a fraction of the sought damages.  The awards included $6,000 in special damages, $10,300 for past loss of income and $1,000 for non-pecuniary damages.  The trial judge found these awards to be “shockingly unreasonable”.
The Plaintiff appealed arguing the non-pecuniary damage award could not be reconciled with the other awards.  The BC Court of Appeal agreed stating that the other awards were consistent with a finding of a 9 month injury and a $1,000 pain and suffering award is not compatible with such a finding.  In ordering a new trial the BC Court of Appeal provided the following reasons:

[9] In the present case, there was a body of medical evidence that did not depend on the veracity or reliability of the appellant plaintiff or her primary treating physician that was supportive of the thesis that she continued to suffer from the sequelae of the April 2006 accident throughout 2006 into the early months of 2007. As I earlier noted, the quantum of the awards made by the jury under the heads of past income loss and special damages are reasonably susceptible of the interpretation that the jury made a factual decision that the effects of the accident did persist for about nine months post-accident.

[10] In my respectful opinion, these findings of the jury as reflected in their pecuniary awards make the award for non-pecuniary damages very anomalous. It is not impossible that the jury may have taken a quite censorious view of the appellant because of her economic circumstances or because of her conduct in importuning the physician to give her a note in aid of possible financial advantage. These would not be judicious reasons for denying her an appropriate award of non-pecuniary damages. As I observed, there was a body of credible evidence that would support an award under this head significantly greater than the amount awarded at trial. While there can be considerable variance in awards made under this head as the cases cited to us demonstrate, this award seems almost derisory.

[11] Generally this Court must be very restrained in any interference with a jury disposition as a consistent body of precedent makes plain. However, I have been persuaded that this is one of those rare cases where the interests of justice make intervention appropriate. The degree of anomaly in the respective awards, coupled with a very real possibility of the triers of fact taking an unduly severe view of the appellant’s conduct unrelated to her physical condition persuade me that the award made by the jury for non-pecuniary damages cannot stand.

[12] We were invited by counsel for the appellant to either fix awards under various heads ourselves, or refer the matter to the trial judge for assessment. The latter course does not commend itself to me for two reasons:  the judge has previously expressed certain fairly strong preliminary views and it is of course the right of the defendant respondent to choose the forum of a jury if so minded. As to the possible remedy of this Court adjusting upward awards made by the jury, this is very much dependent on factual issues, including particularly issues of credibility. Historically this Court has been properly reluctant to engage in factual determinations in this class of matter. In my view, the only appropriate resolution of this case is to set aside the order made at trial and order a new trial and I would so order.

Videotape Evidence "Of Some Assistance" in Impacting Personal Injury Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Privacy Issues, Uncategorized.


As previously discussed, video surveillance is a reality in personal injury litigation and surveillance depicting a Plaintiff acting inconsistently with their evidence can impact an assessment of damages.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, demonstrating surveillance evidence in action.
In last week’s case (Wilkinson v. Whitlock) the Plaintiff was injured in a 2007 collision in Vernon, BC.  The Defendant drove through a red light and was found fully at fault for the crash.  The Plaintiff suffered from back problems as a result of the collision.  In the course of trial the Plaintiff testified as to the effects of these injuries.  ICBC introduced video surveillance evidence which gave the impression “of an individual less limited than (the Plaintiff’s) evidence at trial and on discovery would lead one to conclude“. Mr. Justice Barrow provided the following reasons considering this evidence:

[16] There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.

[17] As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff’s left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms. Wilkinson testified that although the pain in her hip or groin varies, it often causes her “to waddle” when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.

[18] The January and February 2008 videotape evidence is of little assistance – the recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.

  • Mitigation of Damages

This case is also worth reviewing for the Court’s application of the mitigation principle.  Mr. Justice Barrow found that the Plaintiff was prescribed therapies that she failed to follow and these would have improved the symptoms.  The Court did not, however, reduce the Plaintiff’s damages finding that it was reasonable for her not to follow medical advise given her financial circumstances.    Mr. Justice Barrow provided the the following reasons:

[50] Returning to the principles set out in Janiak, and dealing with the second one first, I am satisfied on a balance of probabilities that continued physiotherapy at least during 2008 would have reduced some of the plaintiff’s symptoms and increased her functionality. Further, I am satisfied that the supervised exercise program that Mr. Cooper recommended would have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There is no reason to think those benefits would not have continued and perhaps provided further relief.

[51] The more difficult issue is whether it was unreasonable for the plaintiff to not have followed up on these therapies. She testified that it was largely due to a lack of financial resources. I accept her evidence in that regard. She was in the midst of renovations which were costly. In addition she had lost the assistance that Mr. Harrison was to have provided. The renovations were also time consuming and physically taxing. Further, she underwent a very difficult separation from Mr. Harrison which extracted both a financial and emotional toll. In all these circumstances I am not persuaded that the defendant has established that it was unreasonable for the plaintiff not to pursue a fitness regime more diligently than she did. Most of the impediments to the pursuit of such a program will be no longer exist once this trial is over. I will address the implications of that when dealing with the damages for future losses.