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Plaintiff Struck by Fleeing Shoplifter Found Faultless for Collision

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a crash when a Plaintiff was struck by a fleeing shoplifter.
In last week’s case (Bhadlawala v. Baxter) the Plaintiff was involved in a 2008 collision.  At the time he was 64 years old and was a long time employee at Zellers.  He observed an individual shoplifting and followed him into the parking lot.  The shoplifter entered a van.  The Plaintiff stood behind the van, about one vehicle length away, and attempted to write down the licence plate.  The vehicle then suddenly backed up and struck the Plaintiff causing injury.
ICBC argued the Plaintiff should be found 25% at fault for placing himself in harm’s way.  Madam Justice Gray rejected this argument and found the motorist fully at fault.  In doing so the Court provided the following reasons:
[85] Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was negligent in placing himself behind the van in the parking lot, and that he thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to have known that the van was going to back up, and should not have stood behind it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent for the 2008 accident, and that his damages award should be reduced accordingly…

[93] The defence argued that Mr. Bhadlawala should not have pursued the shoplifter. However, the accident was not the result of pursuing the shoplifter. It was the result of the van striking Mr. Bhadlawala in the parking lot.

[94] The shoplifter was in the van. The evidence did not establish whether the shoplifter was the driver or a passenger in the van. The driver of the van probably wanted to avoid anyone noting the van’s license number. It was reasonable for Mr. Bhadlawala to have anticipated that the van might have backed up.

[95] However, the risk of being caught shoplifting is far less significant than the risk of being caught striking a pedestrian with a vehicle.

[96] It was not reasonably foreseeable that the driver of the van would reverse so quickly that Mr. Bhadlawala could not move out of the way in time to avoid being struck. Mr. Bhadlawala was standing over a van length behind the van, which would have given him ample time to get out of the way if the van had moved at a reasonable speed…

[101] As a result, Mr. Robert is entirely responsible for the 2008 accident.

Another useful case addressing this issue can be found here where the BC Court of Appeal found ICBC’s arguments in a similar situation were ‘doomed to failure‘.

The Cost of Insurance Fraud in BC

Written by admin on . Posted in Uncategorized.

If you regularly read this blog you know I hate insurance fraud.  When fraudulent claims are weeded out that’s a good thing.  However, I equally dislike the cost of fraud being blown out of proportion.
Have you ever heard sound bites that insurance fraud is on the rise or spiralling out of control?  If you have a quick look behind the sound bite is important.
Occasionally the insurance industry provides press releases discussing the high cost of insurance fraud.  Often these are accompanied with the suggestion that some sort of ‘reform‘ is needed before fraud makes the system unsustainable.  We don’t get much of this nonsense in BC but in other parts of Canada this is an old song and dance.  The reforms that are urged typically boil down to stripping individual rights for the benefit of insurer profits.
So what is the hard data behind insurance fraud statistics in BC? It turns out, at least insofar as auto insurance claims are concerned, that there is no data.
The BC Utilities Commision recently asked for data addressing auto insurance fraud in BC.  Here is the exchange:

Other Provinces, Ontario in particular, have had a lot of discussion of the high cost of fraud.    A number is often put to the cost of fraud without any hard data to back it up.  It is important to look behind the sound bites to see what actual data the insurers have when they make such allegations.  Perhaps other Canadian insurers will be as willing as ICBC to show their hand and reveal what actual data they have.  Turns out, there may not be any.

"The Pain Remains Real to the Victim" Despite Low Velocity Impact

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

In the latest judicial demonstration that the so-called Low Velocity Impact Defence is not the law, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, awarding damages following a motor vehicle collision.
In yesterday’s case (Sun v. Sukhan) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist.  The collision caused very little vehicle damage.  The Defendant stressed this during trial.  Madam Justice Maisonville provided the following reasons addressing the value of this evidence:

[22] The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

[23] From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

The Court went on to find that the collision caused soft tissue injuries that largely resolved after 21 months but continued to occasionally flare.  In assessing non-pecuniary damages at $20,000 the Court provided the following reasons:

[55] In all of the circumstances, I find while the plaintiff’s injuries had largely resolved within one year and nine months, he has some ongoing complaints of pain, coupled with his inability to perform certain activities as a consequence of his fear of causing flare-ups to his lower back such as carrying heavy objects.

[56] Taking evidence as a whole, I find that the plaintiff has, on a balance of probability, proved he was injured from this accident for one year and nine months and that he presently has some minor complaints on occasion relating to his lower back and neck, but that these are not preventing the plaintiff from enjoying his pre-accident state of health and activity level.

[57] I award the following:  Non-pecuniary  damages: $20,000

For more on this topic you can click here to access my archived posts addressing ICBC’s Low Velocity Impact Policy.


ICBC Claim Frequency Down – Trend Projected to Continue

Written by admin on . Posted in Tort Reform, Uncategorized.

Have you ever heard the insurance industry discussing how claims are out of control and without ‘reform‘ coverage will become unsustainable?  In BC we are fortunate that this type of rhetoric has never been accepted.
In some other Provinces, however, such soundbites have caused governments to strip or modify individuals right to sue when harmed through the carelessness of others.  In BC this is not the case.  Given this claims must out of control, right?  The short answer is absolutely not.
The latest data filed by ICBC with the BC Utilities Commission shows that not only are the number of claims down but the Ultimate Claim Frequency (the number of actual claims also factoring in the number of auto insurance policies) is also significantly down.

But this data only covers 2001-2010, surely things will get worse in the future right?  Absolutely not.  The below ICBC claims frequency projections are quite revealing.

This data illustrates that the public does not need to have their tort rights stripped in order to have a stable and functioning auto insurance industry.  Provinces that have fallen for tort-reform rhetoric should have a sober look to BC’s positive experience.

$65,000 Non-Pecuniary Damage Assessment for Chronic Pain Disorder

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

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic pain disorder caused by a motor vehicle collision.
In yesterday’s case (Loveys v. Fleetham) the Plaintiff was involved in a significastn 2006 collision.   The Plaintiff was struck by an out of control large truck driven by the Defendant.  The force of impact pushed the Plaintiff’s vehicle off the road.  The Plaintiff alleged she suffered physical and psychiatric injuries as a consequence of the crash.
Mr. Justice Armstrong found that the Plaintiff did suffer from physical injuries which went on to cause a chronic pain disorder.  The court did not find the Plaintiff’s psychiatric difficulties were related to the collision finding these had their origin in other life events.  The reasons for judgement are useful for the Courts lengthy discussion of causation and indivisible injuries.  In assessing non-pecuniary damages at $65,000 Mr. Justice Armstrong provided the following reasons:

[191] I am satisfied that Ms. Loveys suffered soft tissue injuries to her neck, back and shoulder and that those areas of complaint have evolved into a chronic pain disorder. I accept the plaintiff’s chronic pain was caused by the accidents. I also accept that she experienced an exacerbation of her pre-existing symptoms of depression and bulimia after the accident; the plaintiff has not proven that “but for the accident” she would have suffered the recurrent bulimia, acute stress disorder and/or depression.

[192] Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents’ illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.

[193] In my view Ms. Loveys’ psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted…

[214] I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.

[215] Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.

[216] Even on an intermittent basis, chronic pain deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys’ recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.

Hard Data on ICBC's Legal Costs from 2003-2011

Written by admin on . Posted in Tort Reform, Uncategorized. 47 Comments on Hard Data on ICBC's Legal Costs from 2003-2011

As previously discussed, one of the benefits of having a crown corporation as our Provincial auto-insurer is the accountability that comes with public reporting obligations.
In support of ICBC’s recent request for a rate increase with the BC Utilities Commission ICBC filed thousands of pages of further data earlier this week.  ICBC’s latest filing can be found here.
Included in the filing was data relating to ICBC’s legal costs from 2003-2011.   On review it is apparent that many of these costs have remained steady over time while some expenses have decreased dramatically.  I highlight this information as it runs against the notion advanced by so-called ‘tort-reformers‘ that litigation costs are ever increasing or somehow out of control.  To the contrary, this data reveals a fairly steady and reliable system in action.

"Pro Forma" Pleadings Not Enough To Compel MSP Record Production

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 3 Comments on "Pro Forma" Pleadings Not Enough To Compel MSP Record Production

Further to my previous post on this topic, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether MSP records were producible in a personal injury claim.
Today’s case provides perhaps the most in depth analysis of the issue to date and is worth reviewing in full.  In short the Court held that such records may be disclosable given the right circumstances but a ‘pro forma’ pleading of pre-existing injury is not sufficient to trigger disclosure obligations.
In this week’s case (Kaladjian v. Jose) the Plaintiff was injured in a collision.  The Defendant applied for production of the Plaintiff’s MSP printout.  The Plaintiff’s lawyer had this document but did not produce it arguing it was not relevant.  The Defendant’s application was dismissed at first instance.  The Defendant appealed arguing MSP records were disclosable as a matter of course in a personal injury claim.  Mr. Justice Davies disagreed and dismissed the appeal.  In doing so the Court provided feedback as to the proper procedure when seeking production of such records and gave the following reasons:

[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, …

[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.

[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”

[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.

[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made…

[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.

[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents…

[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).

[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.

[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro formapleadings…

70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.

$75,000 Damages for Onset of Knee Arthritis Pain; Golden Years Doctrine Applied

Written by admin on . Posted in ICBC Knee Injury Cases. 110 Comments on $75,000 Damages for Onset of Knee Arthritis Pain; Golden Years Doctrine Applied

Reasons for judgement were released earlier this month assessing damages for a knee injury caused in a 2007 collision.
In the recent case (Dulay v. Lachance) the Plaintiff was injured in a broadside collision. Fault for the crash was admitted by the offending motorist. The Plaintiff suffered from chronic knee pain and dysfunction following the crash. The trial focused largely on whether the collision was responsible for this.
Investigation following the collision revealed that the Plaintiff had pre-existing arthritis in his knee. As is often the case, this condition was asymptomatic prior to the crash.
The plaintiff presented medical evidence suggesting the collision was responsible for the onset of pain. The defendant argued the collision was coincidental to the onset of symptoms. The court preferred the Plaintiff’s evidence. In assessing non-pecuniary damages at $75,000 Madam Justice Maisonville applied the ‘golden years‘ doctrine and provided the following reasons:

[78] Dr. McLeod had described the contusion to the right medial femoral condyle and medial tibial plateau (very simply put – the area where the femur meets the lower leg bones) as mild, but as noted he separated this injury from the triggering of the arthritis as clarified in his second report. I accept his evidence on this point and find that his attribution of “mild” to the injury did not mean to incorporate the onset of symptoms of osteoarthritis.

[79] Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.

[96] The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.

[97] The plaintiff relies on the report of Dr. Grover who wrote:

It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.

As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident…

[106] There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident…

[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[124] I find Griffin J.’s reasoning apt here in Mr. Dulay’s case where he is nearing retirement and has lost the ability to function in a way that has altered how he lives.

[125] Additionally, Mr. Dulay continues to work and perform everything he can. He has not asked for his employer to accommodate him. He is a team player and endeavours to do everything he can even though he must stop, take medication, and bear much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet, 2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:

Stoicism of the plaintiff should not reduce the award.

[126] In all the circumstances of the case I award the plaintiff $75,000 in non-pecuniary damages.

Government Housing Loan Potentially Leads to Private Law Duty of Care in Brain Injury Case

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized.


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether a government home improvement loan can create a private law duty of care.
In last month’s case (Benoit v. Banfield) the Plaintiff suffered a serious brain injury when falling from a staircase built by the Defendant. The Defendant reportedly built the stair case “without handrails or guards“.
The construction was financed in part by a forgivable loan provided by the Canada Mortgage and Housing Corporation (“CMHC”). The loan was part of a program called the Canadian Home Renovation Plan. The money was to be advanced “upon satisfactory completion of the work” by the homeowner and CMHC was to conduct two inspections to ensure the work was “completed satisfactorily“.
The Plaintiff sued the homeowner and also the CMHC. The CMHC applied to dismiss the lawsuit arguing that their limited relationship to the plaintiff did not create a private law duty of care. Madam Justice Wedge disagreed and allowed the lawsuit to proceed. In doing so the Court provided the following reasons:

[39] In the present case, CMHC offered grants of up to $3,000 per applicant for a one-year period. The pool of funds from which to draw was limited in the amount of $30 million. Thus, even were one to consider the possibility of a duty of care to all loan recipients, the number of persons is not indeterminate. In the context of the present case, liability extends only to the class of persons who might reasonably be foreseen as users of the defective staircase in question.

[40] Thus, I conclude that on the facts as pleaded by the infant plaintiff, there is a reasonable prospect of successfully establishing proximity. The plaintiff’s claim is grounded in allegations of specific conduct by CMHC concerning the creation of the defective staircase and its negligent inspections.

[41] As noted by the Supreme Court of Canada in Imperial Tobacco at para. 47:

… where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult. So long as there is a reasonable prospect that the asserted interactions could, if true, result in a finding of sufficient proximity, and the statute does not exclude that possibility, the matter must be allowed to proceed to trial, subject to any policy considerations that may negate the prima facie duty of care at the second stage of the analysis.

[42] This case falls squarely within the circumstances described in that passage, and accordingly the motion to strike is dismissed.

Formal Settlement Offers and Costs Consequences: A "Broad Discretion"

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


Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, discussing the broad discretion that Judges have respecting costs consequences following trial where formal settlement offers have been made.
In last month’s case (Ward v. Klaus) the Plaintiff was involved in a motor vehicle collision.  Prior to trial ICBC tabled a $493,000 settlement offer.  As trial neared the offer was increased to $595,000.  The Plaintiff rejected these offers and went to trial.  At trial the presiding judge awarded just over $434,000.
ICBC brought an application to be awarded post offer costs.  This would have created a ‘costs swing‘ of $149,000.  Mr. Justice Goepel ultimately stripped the Plaintiff of her post offer costs but did not make her pay the Defendants costs reducing the sting of her failure to best the formal settlement offer.  In demonstrating the ‘broad discretion‘ of Rule 9-1 Mr. Justice Goepel provided the following reasons:

[32] Since its inception in 2008, much ink has been spilled explaining the Rule. LexisNexis Quicklaw presently references some 231 decisions in which the Rule has been discussed. From the decisions, some broad principles of general application have emerged concerning how the Rule should be applied.

[33] It is now generally recognized that the Rule provides for the exercise of a broad discretion by trial judges and provides principles to guide in the exercise of that discretion: Roach v. Dutra, 2010 BCCA 264, 5 B.C.L.R. (5th) 95…

[53] For the reasons I have stated, it cannot be said that the plaintiff should have accepted either offer. That is, however, the beginning, not the end of the analysis. Unlike Rule 37 which mandated the outcome regardless of the circumstances, Rule 9-1 gives the court a broad discretion to determine the consequence of a successful offer to settle. While the Rule is intended to reward the party who makes a reasonable settlement offer and penalizing the party who fails to accept it, the several options set out in Rule 9-1(5) allows the court to determine with greater precision the penalty or reward appropriate in the circumstances.

[54] In this case, regardless of the merits of the plaintiff’s case, the defendant’s offers to settle cannot be ignored. To do so would undermine the purpose of the Rule. Having decided to proceed in the face of two not insignificant and ultimately successful offers to settle, the plaintiff cannot avoid some consequences. That said, in the circumstances of this case, to deprive the plaintiff of her costs and have her in addition pay the costs of the defendant would be too great a penalty. It would not be fair or just to require the plaintiff to pay the defendant’s costs after the date of the First Offer. Similarly, however, I find that the defendant should not pay the costs of the plaintiff after the delivery of the First Offer, which costs were only incurred because the plaintiff decided to proceed.

[55] Accordingly, I find that the plaintiff is entitled to her costs up to May 3, 2010. The parties will bear their own costs thereafter.