Skip to main content

Mitigation of Damages and Chronic Obesity

Written by admin on . Posted in Uncategorized.


When a Plaintiff fails to take reasonable steps to recover from injury their right to compensation can be reduced accordingly.  Reasons for judgement were released yesterday addressing this topic in the context of pre-existing obesity.
In yesterday’s case (Deligilgio v. British Columbia (Puclic Safety and Solicitor General)) the Plaintiff suffered a back injury as a result of a 2009 collision.  The Plaintiff struggled with obesity.  The evidence suggested that weight loss could help reduce the Plaintiff’s back symptoms.  The Defendant argued that the Plaintiff’s damages should be reduced due to the Plaintiff’s failure to lose weight.
Madam Justice Gropper rejected this argument finding the Plaintiff made “contextually reasonable and sincere efforts” to deal with his weight issues.  In rejecting the Defendant’s argument the Court provided the following sensible reasons:

[87] Once the plaintiff establishes that the defendant is liable for his injuries, the burden shifts to the defendant. In order to prove that the plaintiff did not meet his duty to mitigate, the defence must prove that he acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at para. 203:

A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss [citations omitted].

[emphasis added]

[88] The evidence is clear that Mr. Del Giglio has struggled with lifelong obesity. He has attempted to lose weight in accordance with his doctor’s advice and has been somewhat successful. The plaintiff asserts that with assistance, including physiotherapy, kinesiology, the healthy heart program, a dietician and a gym membership he will likely lose weight and build his core strength.

[89] I find that Mr. Del Giglio has made “contextually reasonable and sincere efforts” to lose weight, but would benefit considerably from professional assistance. I disagree with the defendants that his damages should be reduced to reflect his reflected failure to mitigate. The defendants have not proven a failure to mitigate.

$40,000 Non-Pecuniary Damage Assessment For Chronic Soft Tissue Injuries

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

Adding to this site’s archived BC soft tissue injury cases, reasons for judgement were released earlier this year by the BC Supreme Court, Victoria Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In the recent decision (Hammond v. Meeker) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.   The Plaintiff was 7 months pregnant at the time and the impact was “substantial“.
The Plaintiff suffered from soft tissue injuries to her neck and upper back which continued to produce symptoms including headaches and pain at the time of trial.  The symptoms were expected to continue “for an indefinite period of time“.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Mr. Justice Curtis provided the following reasons:
[20] I find on the evidence that the sum of $40,000 is reasonable and fair compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of life inflicted upon her by the February 9, 2008 collision.  She has suffered a soft tissue injury to her neck and upper back, the significant symptoms of which, particularly headaches and pain and stiffness in the neck, have not resolved in the four years since the collision, and will likely continue for an indefinite period of time in the future.  While the injury and symptoms do not actually prevent any particular activity, they make many activities painful and not enjoyable to the extent that she does not do them.  This has been particularly difficult for her given her position as a home maker with two small children and for a while three with B.T. as a foster child.  On the other hand, I accept Dr. Christie’s opinion that her injury will not require surgery, nor will it make osteoarthritis more likely.

Quantum Before Liability?

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized. 51 Comments on Quantum Before Liability?


Rule 12-5(67) allows the BC Supreme Court to order that one issue “be tried and determined before the others“.
In the personal injury context, where fault is contested, it is not unusual for a Court to agree to determine the issue of fault before valuing the case.  The reason being that if a Defendant is found faultless splitting the issues can save both parties the substantial costs associated with proving the value of the claim.
Interestingly, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing the value of a claim before determining the issue of fault.
In yesterday’s case (Simmavong v. Haddock) the Plaintiff was involved in a 2007 head on collision.  The Plaintiff suffered various injuries and the value of her claim was assessed at just over $332,000 in global damages.  In what must be a very rare set of circumstances, the Court did so prior to the issue of fault being addressed.  The parties apparently consented to this turn of events and unfortunately the judgement does not provide any discussion addressing when such an approach is warranted but does provide the following introductory comments:

[1] This trial concerns the plaintiff’s claim for damages arising from a motor vehicle accident, which occurred on June 24, 2007.

[2] Liability for the accident is denied as there is an action yet to be commenced relating to the plaintiff’s daughter.  The parties have agreed to litigate the claim for the plaintiff’s damages only at this time.

Pre-Litigation Police Disclosure Request Denied

Written by admin on . Posted in BCSC Civil Rule 17, BCSC Civil Rule 2, Civil Procedure. 119 Comments on Pre-Litigation Police Disclosure Request Denied

When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties.  If a formal lawsuit has not been started the  Court’s power to order disclosure becomes far more limited.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision.  The police investigated the matter.  The applicant applied for an order compelling disclosure of the police file.  Orders such as these are routinely granted by consent once formal lawsuits are underway.  In this case no lawsuit was commenced.  The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case.  In dismissing the application the Court provided the following reasons:

[4] Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5] These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.

[6] In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:

(a)        the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;

(b)        the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;

(c)        the defendant must be the only practicable source of the information;

(d)        there is no immunity from disclosure;

(e)        the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.

(f)         disclosure by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour granting the relief.

[7] In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:

6.         I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.

7.         If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.

8.         I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.

[8] Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”

[9] The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.

$27,000 Non-Pecuniary Damage Assessment for Largely Recovered Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 44 Comments on $27,000 Non-Pecuniary Damage Assessment for Largely Recovered Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for “mostly resolved” soft tissue injuries.
In last week’s case (Vela v. MacKenzie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered various soft tissue injuries which, while not resolved, were largely recovered by the time of trial.  In assessing non-pecuniary damages at $27,000 Madam Justice Maisonville provided the following reasons:
[69] The Court must assess damages for injury to the plaintiff.  I find those injuries to be soft tissue injuries to the plaintiff’s neck, shoulder and trapezius area which were at their worst for the first 15 months.  At that time the pain changed to stiffness and by June 2011 was mostly resolved but was continuing sporadically. I find the headaches lasted six to eight months; the back of the hand injury had resolved after approximately three months…
[87] I find in the present case that Mr. Vela has met the burden of proof with respect to injuries he sustained to his neck, upper back and trapezius area, and those to his left hand as well as the headaches that he suffered initially. I find that, with some exceptions, the pain had largely resolved within 15 months, with continuing improvement to where the plaintiff felt he was functioning at 75 per cent to 80 per cent by June 2011. He has now only occasional flare-ups. I consequently find the injuries to be more severe than submitted by defence counsel but far less severe than submitted by the plaintiff.  I find the soft tissue injuries sustained by the plaintiff to be more akin to those sustained by a plaintiff in Hussainyar v. Miller, 2012 BCSC 405 where Allan J. awarded $27,000 in non-pecuniary damages where the injuries had largely resolved within one year but continued in part to trial, some 27 months after the accident.  (See also Robinson v. Anderson,2009 BCSC 1450 $25,000 no permanent or long-term injury or pain Hsu v. Williams, 2011 BCSC 1412 $30,000 award before deduction for failure to mitigate.)  An important principle is to be fair and reasonable to both parties (See Miller v. Lawlor, 2012 BCSC 387 para. 109 considering Andrews v. Grand v. Toy Alberta Ltd., [1978] 2 S.C.R. 229; Jackson v. Lai, 2007 BCSC 1023, para.134 and Kuskis). In all the circumstances, I award $27,000 in non-pecuniary damages.

Privileged Witness Statement Ordered Produced When Witness Becomes Party

Written by admin on . Posted in Uncategorized.

Interesting reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing whether an otherwise privileged statement can be ordered to be produced in litigation where the statement was given by the opposing party.
In last month’s case (Cliff v. Dahl) the Plaintiff was injured in a collision when he was struck by a vehicle driven by the Defendant.  Shortly after the collision the Plaintiff’s lawyer obtained witness statements from a Mr. Weaver and Mr. Jones.
In the course of the lawsuit the Defendant Dahl requested production of these statements but the application was dismissed finding the statements were privileged.  Later Mr. Jones and Mr. Weaver were added as Defendants in the lawsuit.  They brought their own application for production.  Ultimately this was successful with the Court finding a different analysis is required when a party is seeking production of their own statement.   In compelling production Madam Justice Bruce provided the following reasons:

[35] Based on these authorities, I am satisfied that Mr. Weaver and Mr. Jones are entitled to a copy of the statement they provided to Mr. Cliff’s investigator. While their statements as witnesses would not be compellable due to litigation privilege, the change in their status to parties adverse in interest to Mr. Cliff place them on a different footing. Disclosure of these statements is necessary to ensure fairness in the litigation process, to enable these parties to properly defend themselves against allegations of negligence, and to support the truth seeking function of the court. Production of these statements is neither counter-productive to the adversary process nor to the confidential relationship between solicitor and client.

[36] The facts here present a particularly compelling case for production of the statements. The applicants permitted Mr. Cliff’s investigator to take their statements at a time when they were not represented. They were not offered copies of their statements nor advised to seek legal advice about this matter. In addition, Mr. Cliff interfered with the insurer’s investigation of the claim by counselling the applicants not to give a statement unless they first contacted his lawyer. By taking these steps Mr. Cliff’s actions may have prevented a timely statement from the applicants that could have formed a substitute for the statements taken by his investigator. Now that five years have elapsed since the date of the accident, it is apparent that the applicants’ memory of the events has faded. While there is nothing improper about Mr. Cliff’s conduct, it has imbued the applicants’ case with more of a sense of urgency and necessity. There is simply no other means by which the applicants could refresh their memories of the events surrounding the accident.

[37] For these reasons I order production of the signed statements of Mr. Weaver and Mr. Jones in possession of Mr. Cliff’s counsel and the audio recording of the statement. It is not appropriate that I order production of the transcript of the audio recording. This is an aid to follow along with the audio recording and commissioned by Mr. Cliff’s counsel. There is no principle of law that would require Mr. Cliff to share this work product with the applicants. They are free to commission their own transcripts of the audio recording. The applicants have not sought copies of the notes taken by Mr. Cliff’s counsel during his interviews with them. I do not regard these as statements made by the applicants; they are notes to refresh counsel’s recollection of the interview and nothing more. Accordingly, these notes should not be made the subject of a production order.

[38] Mr. Cliff shall produce the audio recordings and signed statements to the applicants within 14 days of this order and upon payment of the reasonable costs for production of copies thereof.

ICBC "Does Not Have Any Duty" To Tell You When Your Claim Expires

Written by admin on . Posted in Uncategorized. 77 Comments on ICBC "Does Not Have Any Duty" To Tell You When Your Claim Expires


Limitation periods are important.  If your case is not settled before your limitation period expires a formal lawsuit needs to be filed within time otherwise the right to pursue the claim effectively disappears.
When dealing with ICBC directly it is important not to rely on them for assistance in bringing limitation periods to your attention.  They are under no duty to tell you when your limitation is coming up.  ICBC is allowed to ‘run the clock’.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In today’s case (Field v. Harvey) the Plaintiff was injured in a 2008 collision.  In her dealings with ICBC some discussions were had regarding settlement with ICBC writing a ‘without prejudice‘ letter referencing bills for massage therapy indicating that “we can discuss this at the time of settlement“.
The Plaintiff never did settle her claim.   She commenced a formal lawsuit but did so after her limitation period expired.  The Plaintiff argued that ICBC should be estopped from relying on the limitation period because of ICBC’s letter discussing settlement.  Mr. Justice Bracken disagreed and dismissed the lawsuit.  In doing so the Court provided the following words of caution:
[27] Finally, the defendants argue that ICBC does not have any duty, statutory or otherwise, to inform potential claimants of the specific date on which the right to commence an action upon a claim will expire…
[30] It is clear from the case law that ICBC was under no obligation to warn the plaintiff that the limitation period had commenced, was not postponed, and would soon expire….

[36] The plaintiff relies solely on the December 15, 2008, letter for her argument that the defence of estoppel can be applied as a defence to the provisions of the Limitation Act. That letter explicitly states: “[n]othing herein contained is or shall be construed as either an admission of liability on the part of the insured or a waiver or extension of any applicable limitation period.”

[37] A reasonable interpretation of this letter in no way evidences a representation or promise, by convention or otherwise, to waive or extend the applicable limitation period. In my opinion, it does quite the opposite by warning the plaintiff that, although all claims are negotiated toward the goal of settlement, time is still running.

[38] Limitation periods exist, in part, to encourage plaintiffs to bring their actions in a timely manner. The plaintiff has failed to bring her action in a timely manner and has not satisfied this court that there exists a lawful reason for her failure to comply with the provisions of the Limitation Act.

[39] The plaintiff’s cause of action is therefore dismissed, pursuant to s. 9 of the Limitation Act, as having been commenced after the expiry of the applicable limitation period.

Future LTD Benefits Not Deducted in ICBC UMP Claim Due to Payment Suspension Clause

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 120 Comments on Future LTD Benefits Not Deducted in ICBC UMP Claim Due to Payment Suspension Clause

In my ongoing efforts to summarize UMP Arbitration decisions, a stack of historic UMP cases have recently been provided to me by colleagues in the Plaintiff bar which I will post as time permits.  To this end, below is a summary of a useful 1999 decision addressing the deductibility of future Long Term Disability Benefits in an UMP Claim.
In the 1999 decision (M. v. ICBC) the Claimant was severely injured in a 1993 collision.   The Claimant and ICBC came to a mediated settlement valuing the claim at $1.2 million.  The Defendant was under-insured and an arbitration was held to determine what amounts were deductible from the Claimant’s UMP coverage.
The Claimant had a private policy of insurance with Canada Life.   They had paid over $70,000 in LTD benefits.  It was agreed that these were deductible.   ICBC argued that these payments would continue and the present value of future payments had to be deducted from the settlement amount.
Arbitrator Yule disagreed due to a ‘payment suspension‘ clause in the LTD contract.  In not deducting future LTD payments from Canada Life Arbitrator Yule provided the following reasons:
79.  …The critical provision regarding what is payable in the subrogation provision is the term that says “if a lump sum payment is made under judgment or settlement for loss of future income or for future period or lump sum benefits which would otherwise be payable under this policy, no further benefits will be paid under this policy until such time as the monthly or periodic benefits which would otherwise be payable under this policy equal the amount received in the lump sum”…
81. …One looks to the ICBC Regulations and, in this case, the definition of deductible amount.  One item to be deducted is an amount “payable to the insured under any benefit”.  One then looks to the Canada Life Policy to see whether the future disability benefits will be payable in the sense that they are going to be paid.  In this case, the result of the payment of the UMP Claim is that the future Canada Life benefits will not be paid because of the integration provisions of the Policy.  In my view, then, the future Canada Life benefits are not payable and do not constitute a deductible amount.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$100,000 Non-Pecuniary Damage Assessment For Chronic Pain Syndrome

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing causation and quantum of damages for chronic pain syndrome.
In this week’s case (Mohan v. Khan) the Plaintiff was involved in a 2007 collision in Vancouver, BC.  Although ICBC denied the issue of fault the Defendant was ultimately found fully liable for the crash.  The Plaintiff suffered various soft tissue injuries and went to suffer from a chronic pain disorder.  Despite some concerns about the Plaintiff’s ‘exaggeration‘ and a further finding that the Plaintiff failed to mitigate her damages the Court assessed non-pecuniary damages at $100,000.  In doing so Mr. Justice Bowden provided the following reasons:

[158] This case went to trial approximately 4½ years after the motor vehicle accident in which the plaintiff was injured. There is no question that the plaintiff suffered soft tissue injuries from the accident. Had those injuries taken three or four months to resolve, this litigation would most likely not have taken place. What has led to this court case and a substantial claim for damages is that the plaintiff asserts that she suffers from what is described as chronic pain disorder long after her physical injuries from the accident have resolved.

[159] Based on the evidence of the medical experts it is apparent that chronic pain disorder is a condition that involves both physical trauma and psychological factors…

[163] Based on the testimony of the medical experts I am satisfied that the pain described by the plaintiff, in large part, is real and I do not find her to be dishonest. However, in my view, she has exaggerated her symptoms to some degree…

[168] Having considered these opinions and the opinions of the other experts, I am satisfied that the motor vehicle accident, which I have already determined to have resulted from the defendant Mohan’s negligence, was largely, although not exclusively, the cause of the plaintiff’s “constellation” of conditions. The plaintiff has established on a balance of probabilities that the defendant’s negligence materially contributed to her condition. I am also satisfied that the plaintiff’s condition is not motivated by a desire for secondary gain. By that I mean the third principle stated by Lambert J. I accept that the plaintiff wishes to be free from her pain; however, her failure to mitigate, much like the exaggeration of her symptoms, in my view should be considered in the determination of damages.

[169] Dr. Anderson and Dr. Caillier both expressed the opinion that the plaintiff suffered from chronic pain disorder. None of the medical experts said that the plaintiff does not suffer from chronic pain disorder. The defendant’s expert neurologist Dr. Teal opined that the plaintiff’s primary problems were related to symptoms of pain which are significantly amplified by psychological factors. At the same time, he agreed with counsel for the plaintiff that some of his observations were consistent with someone with chronic pain disorder.

[170] I am satisfied that the plaintiff’s condition is properly described as chronic pain disorder…

[187] Having considered the cases referred to by counsel for both parties, and factoring in the failure of the plaintiff to mitigate as well as her exaggeration of her symptoms, I have concluded that an award of non-pecuniary damages should be $100,000.