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50/50 Liability Split For Intersection Crash On Amber Light

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

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection crash involving a left hand turning vehicle and a through vehicle on an amber light.

In yesterday’s case (Tan v. Nenadic) the Plaintiff was a passenger on a motorcycle.  There were two designated turn lanes and two through lanes in their direction of travel.  They were travelling in the right hand through lane.  As they approached an intersection their light turned amber.  Vehicles in the lane to their left stopped but the motorcycle continued into the intersection.  At the same time an on-coming BMW was committing a left hand turn resulting in collision.  Mr. Justice Wong found both driver’s equally to blame.  In doing so the Court provided the following reasons:

] Mr. Kwong was driving a black 2001 BMW 330Ci convertible automobile eastbound on 49th Avenue, intending to turn left to go northbound on Boundary to attend his place of employment.  He had entered the intersection, stopped to wait for oncoming traffic to clear, before commencing his left turn.  Oncoming westbound traffic in the left travelling lane came to a stop when the light changed to amber.  It is unclear how many stopped vehicles were in that lane, but at least two to three, possibly more.

[8] Clear visibility of the right westbound travelling lane would likely be obscured by the line of stopped vehicles in the left westbound travelling lane for Mr. Kwong.  Mr. Kwong proceeded to make his left turn in one continuous sweep over the left westbound travelling lane, and proceeded halfway into the right westbound travelling lane, when he was struck by Mr. Nenadic’s motorcycle approaching from the east.  The car and motorcycle collided in the intersection.  The motorcycle went straight into the right front corner of the BMW, throwing Ms. Tan and Mr. Nenadic from the motorcycle.  There was considerable damage to the BMW.  Mr. Kwong apparently did not see Mr. Nenadic’s motorcycle until just before the impact…

[11] Like my late colleague, Mr. Justice Edwards, factually I have also concluded that both defendants were equally at fault.  Mr. Nenadic should have approached the intersection with more caution in order to be able to stop safely.  Mr. Kwong failed to take into account the manifest hazard in the case of Mr. Nenadic’s approaching motorcycle speeding towards him.  Had he paused for a better look before entering the right westbound oncoming lane, instead of casually continuing on, he would have avoided the collision.

[12] Accordingly, all defendants were equally culpable in fault.

$40,000 Non-Pecuniary Assessment For Fractured Hand With “Triggering”

Written by admin on . Posted in ICBC Hand Injury Cases.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hand injury sustained in a motor vehicle collision.

In yesterday’s case (Sandher v. Binning) the Plaintiff was injured in a 2009 head-on collision on the Fraser Highway.  The Defendant admitted fault for the crash focussing the trial on the assessment of the Plaintiff’s damages.

The Plaintiff was a 35 year old construction labourer.  The collision caused closed fractures of his middle and ring finger metacarpals.

These went on to cause weakness and lack of grip in his right hand.  Eventually the Plaintiff developed triggering (causing the fingers to become stuck in the flexed position).  Surgery to treat this condition was not entirely successful.  This caused some restriction in the plaintiff’s vocational abilities.  In assessing non-pecuniary damages at $40,000 Madam Justice Fenlon provided the following reasons:

[21] Mr. Sandher experienced the pain of fractured bones, the inconvenience of a cast for several weeks, pain following tenoplasty surgery, ongoing hand pain and stiffness, and pain from soft tissue injuries. The soft tissue injuries largely resolved within six months of the accident with occasional flare-ups on heavy activity; I find for the following reasons that those flare ups and hand symptoms have had a relatively small impact on his day-to-day life, social activities and general enjoyment of life.

[22] In relation to the impact of the injuries on his recreational activities, the plaintiff claims that he is unable to lift weights, something the plaintiff said in his direct-examination that he did four to five times a week. However, in cross-examination, he conceded that before the accident he only lifted weights at most two to three times a week when he could find time after work. In addition, the plaintiff now has two young children, and he has less time and energy to spend at the gym, quite apart from the impact of his injuries.

[23] The other recreational activities the plaintiff claims have been affected by his injuries are walking and camping. Although Mr. Sandher continues to engage in those activities, he testified that he may walk and camp less often now than before the accident. Again, the plaintiff conceded that he does not have the same amount of time to do these activities because of his young family and the fact that he is often tired after returning from work.

[24] There was some evidence to suggest a loss of ability to do outdoor work. The plaintiff described helping his cousin Narendra Riar enclose an area below an upper level patio before the accident. That involved clearing weeds and leveling the area as well as lifting and carrying heavy paving stones, work Mr. Sandher did without difficulty. Mr. Riar and Mr. Sandher contrasted that occasion with his inability at the end of February or early March 2011 to help his cousin do similar work constructing a shed. Mr. Riar testified that the plaintiff had difficulty carrying the wood for the shed and was unable to use a hammer due to his hand injury. However, under cross-examination Mr. Sandher agreed that he had undergone tenoplasty surgery for his trigger finger only a week or two before trying to help Mr. Riar with the shed…

[27] Taking into account the differences between the plaintiff’s situation and the fact patterns in the cases relied on by the parties, I am of the view that the plaintiff should be awarded $40,000 in non-pecuniary damages…

[38] I find that the plaintiff has proved on a balance of probabilities that the injuries he sustained to his dominant hand, as well as the recurrent flare-ups of soft tissue injuries on heavy activity, have impaired his ability to work as a framer.

Withdrawn Formal Offer Still Effective In Triggering Double Costs

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

In my continued efforts to track the judicial shaping of Rule 9-1, reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, ordering double costs following trial where a Plaintiff bested a withdrawn formal settlement offer.

In the recent case (Bartel v. Milliken) the Plaintiff was injured in a 2008 collision.  Prior to trial the Plaintiff delivered a formal settlement offer of $29,800.  This offer was withdrawn after trial but before judgement.  The trial ended in March of 2012 and judgement was delivered in April.  The judgement exceeded the Plaintiff’s formal offer by abot $9,000.  The Plaintiff applied for post offer double costs.  The Defendant argued these should not be awarded since the offer was withdrawn.  Madam Justice Gerow rejected this argument and awarded post-offer double costs.  In doing so the Court provided the following reasons:

[15] As stated earlier, the defendants submit the fact that Ms. Bartel withdrew her offer after trial is a factor which weighs against the awarding of double costs because it deprived the defendants of the ability to accept the offer at a later date as contemplated by the rule.

[16] However, at the same time the defendants concede that the intention and spirit of the rule governing formal offers to settle is to avoid the cost of a trial. In my view, the fact that Ms. Bartel withdrew her offer to settle between the time the trial ended and judgment was rendered is not a factor that weighs against an award of double costs.

Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

Written by admin on . Posted in Damages for Charter Breaches. 52 Comments on Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether the monetary penalties paid via BC’s Charter violating impaired driving scheme need to be repaid.

Last year Mr. Justice Sigurdson struck down BC’s aggressive drunk driving law finding BC’s ARP scheme unjustifiably violated individuals section 8 Charter rights.  In today’s judgement (Sivia v. Superintendent of Motor Vehicles) the Petitioners asked the Court to reimburse “all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee.”

Mr. Justice Sigurdson refused to grant this remedy holding as follows:

[114] I have found that the petitioner’s argument that the declaration of invalidity under s. 52 should have retroactive effect, must fail.  The decision in Sivia #1 that parts of the ARP regime violated s. 8 of the Charter and were, therefore, unconstitutional, represented a substantial change in the law as described in Hislop.  Further, the additional Hislop factors, on balance, weigh in favour of a prospective only application of the declaration.

[115] Although the prospective declaration of invalidity answers the majority of the petitioner’s additional or alternative claims, I have further found that even when assessed independently, the petitioner’s additional or alternative claims must also fail.

[116] With respect to the petitioners’ contention that they are entitled to Charter damages under s. 24(1), I have found that it would not be “appropriate and just” to order such damages as the government, in adopting the ARP regime and applying it to the petitioners and collecting monies from them, did not engage in any misconduct or bad faith actions.

[117] With respect to the arguments that the monies were collected under an invalid law enacted in bad faith, and with respect to the claim for restitution of the monies collected on the basis of the principle of unjust enrichment, I have found that the doctrine of qualified immunity provides a complete defence to both of these claims.

[118] With respect to the argument that certain of the monies collected represent taxes which were unlawfully collected, I have found that those monies are regulatory charges, not taxes, and are not recoverable under theKingstreet decision.

[119] Finally, I have found that as a result of the prospective only application of the declaration of invalidity, any petitioner with any outstanding fees, penalties or suspensions is still subject to paying/serving such fees, penalties, and/or suspensions.

[120] For these reasons, I have concluded that the petitioners are not entitled to the personal and monetary remedies that they seek.  The parties may arrange to appear before me to discuss the issue of costs, or if they agree, they may file written submissions on that issue.

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

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


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

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

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

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

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

No Negligence For Crash Following Tree Suddenly Falling on Roadway

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


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

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

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

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

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

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

Driver Found Faultless For Collision With Child on Kick Scooter

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


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a motorist and a child on a scooter.
In last week’s case (Adams v. Zanatta) the Plaintiff, who was 9 years old at the time, suffered serious injuries in a 2006 collision.  The Plaintiff was travelling down a paved alley on a kick scooter.  At the same time the Defendant was operating a vehicle.  From the Defendant’s perspective the alley was obstructed from view because of a fence.   The Plaintiff came from the alley and entered the roadway without yielding the right of way.  A collision occurred.  The Plaintiff sued for damages arguing the Defendant should have been more cautious in the circumstances.  In dismissing the claim Madam Justice Brown provided the following reasons:

[17] I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard.  To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.

[18] I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.

[19] Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue.  He was aware of the obstructed view of the alley caused by the fence.  He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street.  Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour.  I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams.  At that point, Mr. Adams was just by the fence, coming out of the alley.  Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.

[20] The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent.  He was not traveling at an excessive speed for the circumstances.  I am satisfied that he was driving very slowly…

[25] Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour.  Mr. Adams was traveling quickly.  I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling.  Mr. Adams did not stop.  As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.

[26] As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side.  I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street.  In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.

[27] Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:

Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway.  Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably.  Mr. Justice Taylor said this:  “Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time” (my emphasis).  This is especially so in suburban areas.

[28] As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue.  As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty.  A reasonably careful driver would not have done more.

For more on the Standard of Care for motorists driving near children you can click here for the Supreme Court of Canada’s latest comments on this topic.

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

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

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

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

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

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

Welcome Globe and Mail Readers

Written by admin on . Posted in BC Injury Claims Media Archives. 55 Comments on Welcome Globe and Mail Readers


Earlier this week I had the pleasure of being interviewed by Lisa Ostrikoff who authored an article for the Globe and Mail’s Report on Business regarding industry specific business use of social media.  You can click here to read her article.
For those of you visiting this site after reading this article, welcome!  While my business is injury litigation (not business consulting) I’m happy, time permitting, to share my views with respect to social media from a legal business perspective.  Feel free to contact me if you have any questions.

$45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases, Uncategorized. 52 Comments on $45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for injuries sustained in a collision.
In this week’s case (Coutakis v. Lean) the Plaintiff was involved in a rear-end collision in 2008.   The crash was of ‘considerable force‘.  While there was competing evidence as to the exact speed of impact the Court made the following common sense observation “The precise speed does not matter.  What does matter is that there is no evidence that the force of the collision, given the defendant’s estimated speed, would have been insufficient to cause the injuries complained of“.
The collision caused low back soft tissue injuries in addition to a C-7 disc herniation with nerve root impingement causing pain and weakness in the Plaintiff’s arm.

The Plaintiff was a retired maintenance engineer but made spare money in his retirement painting houses.  The injuries disabled him from this work.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[47]In summary, Mr. Coutakis was an active and relatively healthy person prior to the motor vehicle accident, with no significant low back pain other than the occasional flare-ups which we are all subject to, and with every reason to expect a healthy and active retirement.  His plan to keep working at painting was reasonable, and there is a significant probability to be attached to his thought of continuing to work, health permitting, approximately to age 75.  His current complaints disable him from pursuing his employment as a painter.  I find that his current complaints were materially contributed to by the accident.  There is no basis, on the evidence, for concluding that any pre-existing degenerative changes in his cervical or lumbar spines – the cervical herniation, and the lumbar disc bulging – would have become symptomatic but for the accident, and certainly not to the present level of dysfunction and disability.

[48]There is some reason to hope for some modest resolution of Mr. Coutakis’ complaints with continuing conservative treatment.  However, the only expert witness to express any significant degree of optimism is his family physician, Dr. Cox.  Dr. Cox is not a specialist and I am not inclined to give his optimism a great deal of weight.  He did not have the benefit of Dr. Rothwell’s report, when he examined Mr. Coutakis in September 2010.

[49]I regard the possibility of Mr. Coutakis making any really significant recovery to the level of having a pain-free life, as small.  Even if he were to recover to the level where he might be physically able to resume work, the question at that point would be whether he would be inclined to do so, given his age; with all that he has been through, at that point it would be entirely reasonable for Mr. Coutakis to retire fully and enjoy what is left of his healthy retirement years…

[52]I assess non-pecuniary damages at $45,000.