The BC Government’s 2013-2014 Budget has just been released. Included in the documents is ICBC’s Service Plan for 2013-2015 which reports robust net profit expectations. Below I reproduce the Crown Corporation’s Summary Financial Outlook. It is noteworthy that this current projection is up over 200 Million from ICBC Projections for 2012-2014 released last year.
The Government also reports a planned $539 Million profit scoop for ‘core government services’ with the Budget and Fiscal Plan reporting as follows: Insurance Corporation of British Columbia – ICBC’s net income outlook is forecast at $257 million in 2013, $222 million in 2014 and $205 million in 2015. The outlook assumes average annual growth of 1.5 per cent in the number of insured vehicles and a 3.6 per cent average annual increase in claims costs. Over the fiscal plan period, ICBC is forecast to remit $539 million of its excess Optional insurance capital to the consolidated revenue fund to support core government services.
I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage. The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was involved in a minor rear-end collision Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back. The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.
The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision. In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence: [206] I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact. [207] Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33. [208] In Miller v. Darwel, 2005 BCSC 759, the court stated: [9]On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4: 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 not 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. [10]As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury. [11]I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7: Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury. [209] More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.” [210] I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.
Last year Mr. Justice McEwan blasted BC’s Attorney General stating that ‘some things cannot be for sale’ and struck down Provincially imposed Court ‘hearing fees’. This decision has now been overturned by the Court of Appeal who have upheld BC’s Court hearing fees but held that in order to survive constitutional challenge the Judicial right to waive these fees much be applied to all ‘in need‘.
In last week’s decision (Vilardell v. Dunham) the Court of Appeal provided the following feedback in upholding BC’s Court hearing fees: [4] In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice. The power is found in an enlarged interpretation of the indigency provision… [31] I am reluctant to take the course suggested by the respondents. Cost recovery has been a legitimate government objective for centuries and our Constitution assigns administration of the superior courts to the province. It is a drastic step to strike down an otherwise valid enactment for want of a saving provision that falls short of the mark. A more surgical response is to remedy the deficiency by reading in the under-inclusive indigency provision in the Rules to include people who are “in need”: see Schachter v. Canada, [1992] 2 S.C.R. 679 at 718. “In need” recognizes the fact that some litigants, while not destitute or impoverished, are still in need of relief or assistance in order to have their case heard before a superior court… [35] To the extent that the hearing fees have the potential to interfere with the core judicial function of running a trial, which I think they do, the courts should respond to the interference. Judges must not shy away from dealing with such incursions. The remedy I propose in this case is a measured response to the problem. .. [41] Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken. The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”. The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.
In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.
In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision. Liability was admitted by the defendant. The Plaintiff advanced a claim alleging longstanding and disabling physical injuries. The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim. Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence: [107] She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time… [331] …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage… [369] I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates. [370] In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, confirming that a settlement agreement made in a Rule 15 action for an amount “plus costs” contemplates costs capped under the fast track rule.
In this week’s case (Wan v. Smith Estate) the Plaintiff was prosecuting an injury claim under Rule 15. As trial neared the Plaintiff accepted a defence settlement offer of $60,000 “plus costs and disbursements” . The Plaintiff then sought Tarriff costs of over $17,000 as opposed to the capped pre-trial costs of $6,500 under Rule 15. Mr. Justice Punnett held that Rule 15 costs applied to the settlement agreement. In coming to this conclusion the Court provided the following reasons: [13] It is not disputed that the fast track rule governs. The plaintiff asks the court to exercise its discretion under the fast track rule. Her counsel refers to the wording in 15-1(15) “unless the court otherwise orders” in support. The defendant submits that the reference to “the court” in that section is a reference to the trial court not this Court in chambers. That is that cost awards are within the discretion of the trial court. Further they submit that the offer and its acceptance were clear and the costs referenced in the settlement are to be awarded pursuant to Rule 15-1. [14] The difficulty with the plaintiff’s submission is counsel’s letter confirming settlement responds to the defendant’s offer of costs. That offer was clearly for costs under the fast track rule. In my view the plaintiff cannot now seek to redefine what was meant by “costs”. It is inappropriate for the court to now vary the agreed upon terms of settlement.
Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, addressing costs for witness preparation.
In last week’s case (Carson v. Henyecz) the Plaintiff was injured in a motor vehicle collision. She succeed at both a liability trial and subsequently at a quantum assessment. The Plaintiff was awarded costs. With the exception of experts, the Plaintiff was the only witness at trial. The Plaintiff sought costs for interviewing witnesses for both the Plaintiff and expert witnesses. ICBC argued this was not recoverable as item 18 of the Tarriff does not include parties nor experts. Master McDiarmid disagreed and allowed costs for these items. In doing so the Court provided the following reasons: [24] The most significant dispute between counsel was with respect to item 18. The plaintiff submitted that the process associated with interviewing witnesses included interviewing those witnesses with respect to their attendance at trial. The plaintiff submitted that this included interviewing the plaintiff, who was of course a witness on her own behalf in both trials. It was also submitted by plaintiff’s counsel that item 18 would also permit units to be awarded for interviewing the experts with respect to their attendance at trial… [30] Forms 20 and 21, the case plan proposal and case plan order, have separate sections for expert witnesses and contain provisions for providing a witness list. Form 41, the trial brief, has a heading entitled “Witnesses to be Called On,” which requires the parties to provide the names and addresses of the witnesses the filing party intends to call at trial, together with an estimate for the time each witness will need for giving direct evidence. There is no differentiation on a trial brief between witnesses who are parties, witnesses who are representatives of corporate parties, expert witnesses, or other witnesses. [31] From this I conclude that a party can claim under item 18 with respect to all witnesses for all parties, including in this case the plaintiff and including expert witnesses.
Adding to this site’s archived posts addressing claims of vicarious liability, reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, considering a claim seeking to hold a School District liable for a school-ground assault.
In this week’s case (Jackson v. School District No. 53) the Plaintiff sustained a traumatic brain injury after being punched by another student. The Plaintiff sued the School District arguing the assailant was involved in a previous assault several months earlier and the School District failed to impose adequate discipline which “emboldened (the assailant) by lack of proper discipline“.
Mr. Justice Bernard rejected this argument and dismissed the Plaintiff’s claim finding that even if the school was not harsh enough in their prior discipline there is no chain of causation. In dismissing the claim the Court provided the following reasons: [42] Even if, however, significantly harsher disciplinary measures than those taken ought to have been employed for the March 2 incident, I am unable to conclude that the plaintiff has established the requisite nexus between that failure and the subsequent assault upon him. In this regard, it is noteworthy that seven uneventful months transpired between the two incidents; that the incidents occurred in separate school years and at a time when children and their behaviours are changing rapidly; that it makes little sense that Tylor’s state of mind about Makwalla would have turned on his awareness of the discipline imposed on Makwalla rather than of the details of the incident itself; and, that it would require considerable speculation to conclude either that Makwalla would have been sufficiently deterred or rehabilitated such that the assault upon Tylor would probably not have occurred, or that the assault occurred because Makwalla was emboldened by the inadequacy of the discipline.
Although video surveillance is not always a useful tool in personal injury litigation, it sometimes is used effectively. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating such evidence assisting in challenging a personal injury claim.
In last week’s case (Berenian v. Primus) the Plaintiff was involved in a 2006 collision when he was travelling on foot and struck by the Defendant’s vehicle. Although liability was disputed the defendant was ultimately found 100% at fault for the collision.
The Plaintiff sought damages for soft tissue injuries which he says took 18 months to clear. He further advanced a claim that the injuries “have impacted his routine… because of them, he was not able to run in the usual fashion and it was in fact some time later that he was able to get back to his pre-accident routine“.
The Defendant “robustly disputed” this allegation and produced video evidence of the Plaintiff jogging in the month following the collision. Mr. Justice Williams concluded that the injuries sustained in the collision were “fairly minor” and assessed non-pecuniary damages at $4,000. In rejecting the claims of long-standing consequences from the injuries the Court provided the following comments: 50] As part of its examination of the circumstances, the defence retained an investigator to observe the activities of the plaintiff. That resulted in video recordings being made; those were tendered in evidence at this trial. Those recordings show the plaintiff, on three separate occasions, leaving his downtown place of business and travelling on foot to the area of his residence in West Vancouver. [51] The first of those recordings was made on May 4. It shows the plaintiff as he slowly jogged from his place of business to his residence. On the way, he stopped and did some moderate physical exercise including push-ups. The elapsed time from his departure from his place of work to his arrival at his home was approximately 70 minutes. [52] Another recording was made the day following, May 5. Again, it shows similar activity; the elapsed time was 70 minutes. [53] The third observation was conducted on May 11. Again, the plaintiff is shown essentially jogging from his place of work to his home. The additional exercise was done along the way in the same fashion. [54] At trial, the plaintiff was confronted with this evidence, as well as testimony he had provided in the course of an examination for discovery, at a time when he was unaware of the recordings having been made. At the examination, he stated under oath that he had eased into his running gradually following the motor vehicle accident and had started running the entire distance from his place of work to his home approximately five to six months after the motor vehicle accident. He said that, post-accident, the trip would take him in the order of two hours, which he said was about 45-60 minutes longer than it had taken prior to the injury. His evidence at the examination for discovery was that his time to make the trip, prior to the motor vehicle accident, was in the order of 60-70 minutes. [55] At trial his testimony was different. He said that before the motor vehicle accident, he had been able to do the run and the en route workout in 40 minutes. [56] Quite predictably, the apparent discrepancy between these activities and the manner in which the plaintiff had represented his injuries and their effects was the basis of some real dispute at trial… [68] I am concerned with the veracity of the plaintiff’s claims regarding the extent, severity and effects of the injuries he suffered. The principal basis upon which the claim rests is his testimony, his description. There is not any notable objective evidence to support his assertions of the quite extensive nature of the consequences… [70] In the final analysis, I have very serious doubts as to the truth and reliability of the plaintiff’s description of the extent of the injuries and their impact upon him. My conclusion is that there was some soft tissue injury – bruising and discomfort – but it was fairly minor in that he was able to resume his running within a month. In view of that finding, while I accept there may have been some lingering residual discomfort, it would be of a fairly modest magnitude. [71] Similarly, as for his claims that his neck pain continued for 12 to 18 months, that the headaches persisted for six to eight months, and his complaint of low back pain, I find that he has not proven on a balance of probabilities that such injuries resulted in discomfort such as he describes. On the evidence, it was substantially less.
Adding to this site’s archives of BC Supreme Court damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last month addressing such an injury.
In last month’s case (Jawanda v. Samra) the Plaintiff was injured in a 2006 collision. She was 29 years old at the time and 35 by the of her trial. She suffered from Thoracic Outlet Syndrome as a result of the collision with accompanying chronic pain. The Plaintiff, although able to hold down employment despite her injury, remained symptomatic and the injuries were expected to be permanent. The Court accepted the following medical evidence addressing prognosis: With respect to her thoracic outlet syndrome, it is now a permanent injury to the scalene muscles in an already compromised thoracic outlet due to her congenital cervical ribs. It is my opinion that Ms. Jawanda’s symptoms are unlikely to change or improve but it is my opinion that the symptoms of numbness and tingling and paresthesias would get worse if she was forced to overdo it or continue to do heavy activities which exacerbated her symptoms. This would lead to more chronic muscle and nerve injury and more prolonged pain.
In assessing non-pecuniary danages at $75,000 Mr. Justice MacKenzie provided the following reasons: [143] Balancing all of the evidence I have accepted, I find Ms. Jawanda suffers from mild to moderate chronic pain and thoracic outlet syndrome. Coupled with the authorities referred to by counsel, I am satisfied a fair and appropriate award for non-pecuniary damages is $75,000.
(Update December 3, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal)
————————————————————————————————– Last year the BC Supreme Court found that employer paid wage replacement benefits are non-deductible in ICBC hit and run claims. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this issue in the context of an uninsured ICBC Claim.
In this week’s case (Jordan v. Lowe) the Plaintiff was injured by an uninsured motorist. He successfully sued for damages. When seeking to collect damages from ICBC pursuant to section 20 of the Insurance (Vehicle) Act ICBC argued they could deduct from the judgement the amount of sick leave benefits the Plaintiff collected from his employer. Mr. Justice Willcock dismissed this argument finding these benefits did not have an element of insurance to them thereby not making them deductible The Court provided the following reasons: [20] ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition. I agree that must necessarily be so. ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance. With respect to the able submissions of counsel, I cannot agree. [21] When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez. The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”. While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”. [22] There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section. The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible. It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it. [23] For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance. They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 103 of the Regulation. ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.
