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The Blog Post That Led to Acquittal

Written by admin on . Posted in Uncategorized. 71 Comments on The Blog Post That Led to Acquittal

Earlier today a colleague from work stumbled across an interesting 2011 case from the BC Provincial Court that I thought was worth sharing.
In the recent case (R v. Birring) the Defendant was charged with leaving the scene of an accident following a single vehicle collision.  He represented himself in Traffic Court.  He came to trial armed with “a one page extract from the internet of a blog of a BC lawyer on the duties of motorists involved in singe vehicle accidents…This internet extract cited ICBC v. Pariah Productions Inc.”   (For what its worth here is my 2010 Blog Post titled “Duties of Motorists Involved in Single Vehicle Accidents Discussed” addressing ICBC v. Pariah Productions Inc).
The Presiding Justice of the Peace noted that Blog posts don’t amount to a ‘complete citation’ but expressed surprise at the law as applied in ICBC v. Pariah.  Justice of the Peace Gordon reserved judgement to ‘more thoroughly canvass the law‘.  After doing so the Court, while voicing criticism of the law as applied in ICBC v. Pariah, concluded the case was binding on the Court and acquitted the Defendant.  The Court provided the following reasons:
[]      Mr. Birring cited in his defence on the first charge that, on the facts, section 68 did not apply to him.  In support, he provided the court with a one page extract from the internet of a blog of a BC lawyer on the duties of motorists involved in single vehicle accidents.  This form of legal support illustrates the difficulty in traffic court of deciding issues without the benefit of counsel on each side.  This internet extract cited ICBC v. Pariah Productions Inc., a decision of the BC Supreme Court.  Pariah is an appeal of a decision of this Court in a small claims matter.  The extract reproduced in the printout from the blog suggested it supported Mr. Birring’s position, but as it was not a complete citation of the case, and it appeared to give a different interpretation of section 68(1) than I would have, I reserved judgment to more thoroughly canvass the law…







[]      As I am bound by the decision in Pariah, I conclude that as section 68(1) of the Motor Vehicle Act does not apply based on the interpretation given in Pariah, I must find on the facts that Mr. Birring is not guilty of an offence under any provision of section 68 and I acquit him of charge 1.  As there were insufficient facts to support a charge of making an illegal U-turn, I acquit Mr. Birring of charge 2.









Liability Denial To the Cusp of Trial Brings Judicial Criticism

Written by admin on . Posted in ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:
[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…
The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.

"Scientific Certainty" Not Necessary to Prove Causation in Disc Injury Claim

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized. 68 Comments on "Scientific Certainty" Not Necessary to Prove Causation in Disc Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, discussing the issue of causation in a disc injury claim.
In this week’s case (Valuck v. Challandes) the Plaintiff was injured in a 2007 head-on collision.  Fault was admitted by the offending motorist.  The Plaintiff was ultimately diagnosed with a disc protrusion at the L5-S1 Joint.

ICBC argued the disc protrusion was not caused by the crash or if it was it would have occurred even in the absence of the collision.  Mr. Justice Rogers disagreed and found that while it was not scientifically possible to say with certainty that the disc injury was caused by the crash, it certainly was an event that materially contributed to the injury.
Mr. Justice Rogers assessed non-pecuniary damages at $100,000 but then reduced this award by 40% to take into account the fact that the injury may have occurred even without the crash.  In discussing causation the Court provided the following reasons:

[59] There is a conflict in the evidence concerning the cause of the herniation of the plaintiff’s lumbar disc at the L5-S1 joint. According to Dr. Laidlow, the plaintiff’s disc was probably not injured in the collision. He bases his opinion primarily on the fact that the plaintiff’s complaints of low back symptoms did not start until several weeks after the accident. According to Dr. Laidlow, if the disc had been damaged in the accident then the plaintiff would have had symptoms in that area right after the event and that she would not have been able to ignore those symptoms. According to Drs. Shuckett and Craig, the impact likely caused some damage to the plaintiff’s lumbar disc and that damage materially contributed to the herniation that the plaintiff subsequently experienced a year and a half later.

[60] I found Dr. Laidlow’s evidence to be particularly useful here. Dr. Laidlow said, and I accept, that a spinal disc comprises a containment vessel made up of fifteen to twenty layers of fibrous material and of viscous disc material lying within the containment vessel. The fibrous layers of the wall can, over time, suffer tears. The tears can be spontaneous or, rarely, they can be caused by trauma. The tears may heal over time, or they may not. Tears may occur without causing any symptoms at all. Enough tears may, at some point, be present in the disc wall so that the wall begins to fail. If that happens then the disc might bulge out. The bulging can intrude on pain sensitive tissues and pain may result.

[61] At some further point, enough tears may be present in the fibrous layers to compromise the wall itself and the wall breaks. In that event, the viscous inner disc material will escape from the disc. The escaped material is termed a protrusion and the condition is known as a herniated disc. The protrusion may impinge on surrounding tissues, causing local pain. The protrusion may also impinge on the nerve roots that exit the spine at the site of the hernia. In that case, symptoms usually include pain radiating along the area enervated by that particular nerve.

[62] Dr. Laidlow testified that an accident such as the one in which the plaintiff was involved would likely have caused damage of some kind to her spine. Dr. Laidlow was not willing to say for sure such damage included tears in the wall of the plaintiff’s lumbar disc. In his view, such damage was possible, but that he could not say for sure one way or the other. Given the several weeks’ delay between the trauma of the accident and the onset of the plaintiff’s low back pain, and the year and half that passed between the accident and the herniation, Dr. Laidlow felt that the accident could not be said to be a material contributing factor in the herniation.

[63] Although Drs. Schuckett and Craig did not say so in so many words, the gist of their evidence was that they thought that the accident probably did weaken the disc and thus materially contributed to the herniation that occurred on the Labour Day weekend of 2008.

[64] Dr. Laidlow cannot be faulted for testifying that there is no way to know if the accident in fact caused one or more tears to the wall of the plaintiff’s lumbar disc – no images exist to show the state of her disc in intimate detail immediately before or immediately after the accident, and no physical examination short of a biopsy could have illuminated that issue for him.

[65] I have concluded that the evidence in this case does not admit a scientifically certain answer to the herniation question. Scientific certainty is not necessary, however. As the Supreme Court of Canada said in Athey v. Leonati, [1996] 3 S.C.R. 458 at paragraph 16:

…Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially a practical question of fact which can best be answered by ordinary common sense”. …

[66] After taking into account all of the medical evidence and the all of evidence of the plaintiff and her witnesses, and after applying a soupcon of common sense to the mix, I have concluded that the accident did cause some damage to the containment wall of the plaintiff’s L5-S1 disc and that that damage was a material contributing factor in the herniation that occurred at the end of August 2008. It follows that I find that the defendant is liable for damages caused by that herniation.

"Investigative Stage" Significant Barrier to ICBC Privilege Claims

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


A trend developing in BC Caselaw is the demonstrated difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In this week’s case (Gilbert v. Nelson) the Plaintiff was injured in a 2005 collision with a vehicle.  The Plaintiff was 13 at the time and was riding a bicycle.  Following the collision ICBC investigated the collision and obtained engineering reports and a further report from an independent adjuster.  In the course of the lawsuit the Defendant had access to these documents.  The Defendant refused to produce them claiming litigation privilege.
The Plaintiff brought an application to have these produced.   Master Taylor granted the application finding the documents were created during ICBC’s investigative stage.  In ordering production the Court provided the following reasons:

[35] Saying that litigation is a certainty is not the test for the dominant purpose.

[36] What I do observe from the facts before me is that no counsel was consulted or retained by the defendant or his insurer until after the notice of civil claim was issued in July, 2010.  While the retainer of counsel is not an absolute test as to whether or not documents were created for the dominant purpose of litigation, it is but one factor in this case that indicates that the defendant and his insurer were not preparing for litigation nor directing the course of the defence of a possible law suit, until a notice of civil claim was issued some five years post accident.  One would have thought that the defendants would have sought to establish the dominant purpose by showing on a balance of probabilities that the dominant purpose of the documents was to obtain legal advice or to aid in the conduct of the litigation.

[37] Most certainly the defendant and his insurer had followed a course of investigating the accident, and its dynamics, but other than telephone conversations Ms. Fall had with Mr. Gilbert on June 13 and 15, 2005, there is no evidence before me that the defendant or his insurer made a formal declaration to the Gilbert family by way of letter that liability for the accident was being denied.  In my view, a reasonable person would expect no less especially after the family was told that an assessment of liability would be made after receipt of the traffic analyst’s report which was anticipated to be received by Ms. Fall in August, 2005.

[38] In all of the circumstances, I find that the defendant hasn’t met the onus on him to satisfy me that there exists over either the CWMS notes or the reports currently listed in Part 4 of the Defendant’s List of Documents a litigation privilege, such that disclosure of the documents up to the date of the first letter from counsel for the plaintiff should not be made to the opposite party.  The only caveat will be that all references to reserves are to be redacted.

[39] The plaintiff shall have his costs for preparation for, and attendance at the hearing.

More on the Broad Scope of Examination for Discovery

Written by admin on . Posted in Civil Procedure, Uncategorized.

As previously discussed, BC Courts take a broad view of relevance when it comes to examination for discovery.  Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In the recent case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He was operating a motorcycle with a side-car when he was injured. He sued the manufacturer and other parties.  At the Defendant’s discovery the Plaintiff wished to canvass standards the Defendant had for two wheeled motorcycles (ie- motorcycles without a side-car).  The Defendant objected arguing these questions are not relevant because a motorcycle with a side-car is a “discrete three-wheeled vehicle with handling characteristics not shared by a two-wheeled vehicle.”
The Plaintiff brought application compelling answers to the contentious questions.  Mr. Justice Cullen granted the application and in doing so provided the following reasons confirming the broader scope of relevance at the discovery stage:

[10] The parties agree that the operative rule is Rule 7-2(18)(a) which reads as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action ….

[11] The plaintiff takes the position that it is the pleadings which determine the issues and hence the question of relevance citing the decision of the British Columbia Court of Appeal inCominco Ltd. v. Westinghouse Canada Ltd., [1979] B.C.J. No. 1963.

[12] The plaintiff says the Court on an application such as this ought not to consider evidence in rendering a decision as to do so prejudges the effect of the examination for discovery and usurps the role of the trial judge.

[13] The defendant on the other hand says the only way to determine relevance within the meaning of the Rule is to consider what the available evidence is likely to establish. The defendant says if I consider the evidence of its expert it will establish that the questions concerning the characteristics of a two-wheeled vehicle are simply not relevant to the characteristics of a three-wheeled vehicle and should not be permitted under the Rule.

[14] The plaintiff on the other hand submits that even if I do consider the evidence the question is simply not so clear cut that I could make a determination without effectively usurping the role of a trial judge.

[15] As I see it, this is not a case where it could be said that on the pleadings there is no relevance to the questions being posed. As Seaton J.A. pointed out in West Coast Transmission:

It is not appropriate to plead evidence and the information respecting these other cables is essentially evidence from which the Court will be asked to conclude that the defendants knew or ought to have known of a danger. The respondents relied upon an affidavit to the effect that evidence of non-tech cable would not be a guide to the propensities of tech cable. The respondents refused to answer questions on that subject. I do not think it appropriate to conclude on affidavit evidence that a proposition is unsound and exclude the area from the examination. That is what was done here. It was said then that before there could be examination with respect to cable other than tech cable the appellant would have to establish that the other cable was similar. I know of no procedure whereby a party can prove an aspect of his case before discovery. The decision on similarity ought to be made at trial, not before trial, and particularly not before discovery.

[16] In my view, on that basis the order sought should go. If I am wrong in that however, I am still not satisfied having considered the evidence put before me that there is not some relevance to the questions being posed. There is a difference between the views of the experts as to the possible cause of the accident and whether it resides exclusively in the characteristics of the vehicle as a three-wheeled vehicle or whether it has its source in the component parts of the two-wheeled vehicle. And that is a question essentially for the trial judge.

[17] In his affidavit of December 12, 2011, the plaintiff’s expert deposes as follows in para. 6:

6.         The steering assembly of the Harley-Davidson motorcycle sidecar is identical to that found on the solo motorcycle. The underlying steering assembly response of the base solo motorcycle will behave in the same manner as that same unit will respond when attached to the motorcycle sidecar. This is because they are exactly identical mechanical devices. What will be different is the level of the response of the solo motorcycle vehicle compared to the level of response of the motorcycle sidecar vehicle and the path each vehicle takes due to shaking (oscillations) of the steering assembly once that shaking is initiated.

[18] While I do not in any way wish to be taken as resolving the issue which undoubtedly is a very complex one, I am simply not able to say that the characteristics of some components of the two-wheeled vehicle as revealed by the questions posed may not be germane to the effect upon the three-wheeled vehicle at issue in this lawsuit and, accordingly, for those reasons, I will grant the application of the plaintiff.

The Point of No Return: More on ICBC Settlements, Finality And Consent

Written by admin on . Posted in Settlement Law.


As previously discussed (you can click here to read all my archived posts on this topic), a binding ICBC settlement can be reached even before the ‘full and final release’ is signed.  An oral contract can be the point of no return.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating that once a lawyer accepts a settlement offer on behalf of a client it likely becomes too late for the client to change their mind.
In last week’s case (Truong v. Marples) the Plaintiff was injured in a motor vehicle collision.  She hired a lawyer to advance her personal injury claim.  In the course of the lawsuit ICBC’s and the Plaintiff’s lawyer agreed to a $10,000 settlement.
The Plaintiff agreed her lawyer had authority to accept the offer but argued the deal should not be binding as the offer was ambiguous as it should not have disposed of her no-fault benefits claim with ICBC.  The Court disagreed finding that a binding settlement was reached.  In doing so the Court provided the following reasons:

[20] In terms of ambiguity, I find that there was no ambiguity in the settlement.  The settlement was agreed to between Mr. Grewal and Mr. Shane and they both state that there was no ambiguity and agree on what the deal was.  Their evidence, which was not shaken at the hearing, was that they reached a settlement of all issues, including those regarding tort and Part 7 benefits.

[21] Mr. Shane and Mr. Grewal had a history of working on the opposite sides of files.  It is apparent that the two have developed experience with each other.  Mr. Shane’s testimony also indicates that he has a direct working relationship with the Burnaby litigation department of ICBC, and that an “all in” settlement always meant that it included the tort claim and Part 7 benefits.  He displayed a sound understanding of Part 7 benefits and how they interact with a person’s private health insurance.  He stated that if a settlement did not include Part 7 benefits it was his practice to note that.  I accept his evidence on this point.

[22] The Release document sent by ICBC to Mr. Shane supports the settlement asserted by Mr. Grewal and Mr. Shane.  The document states that it is a release of all defendants, and ICBC under Part 7 of the Insurance (Vehicle) Regulation.  Mr. Shane reviewed this document, obviously found it satisfactory, and passed it on to Ms. Truong for her execution.

[23] I also accept Mr. Shane’s evidence that he always makes sure that his clients understand that the figures being proposed to settle include all potential entitlements they have from their claim which include the tort and Part 7 entitlements.  I also accept that he advised Ms. Truong, as per his practice, that prior to confirming any settlement figure with ICBC, that she would need to sign a Release, that this was not optional, or is something that she could refuse to do, and that their claim would be over.

[24] I am not persuaded that the Sharma case is particularly applicable here, given that both counsel involved in the settlement in the instant case agree as to what was settled

[25] Turning then to the question of whether the settlement was unjust and should not be sanctioned.  I have considered the various factors identified in the Pastoor case.  I am not persuaded that the circumstances justify intervention by the court.  Ms. Truong was represented by experienced counsel.  Mr. Shane provided her his opinion based on the information that he had at the time.  He knew that Ms. Truong had private health insurance, he formed a considered opinion that she had little chance of success on liability and the costs of pursuing that aspect, he had a sound understanding of Part 7 benefits, and he discussed that with Ms. Truong.  There was little evidence adduced as to what it would be in the case of Ms. Truong.  Mr. Shane in this hearing stated that it could be thousands of dollars.  Finally, he also received instructions to accept the offer.

[26] I am of the view that interfering with this settlement would do greater harm to encouraging settlement.  It would undermine the role of counsel in relation to a client, in relation to opposing counsel, and in the litigation process.

[27] The issues raised by Ms. Truong are, in my view, related to her relationship with Mr. Shane and not with the defendant.  Her remedy does not lie in having the settlement overturned.

I repeat my previous words of caution about settlement instructions.  If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim.  In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so.  A best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.

Sometimes You Really Do Have to Sue Your Mother

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


Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.
When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.
In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway.“ At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.
The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] … The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

Bus Driver Liable For Injuries Caused by Hard Braking

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, Uncategorized. 99 Comments on Bus Driver Liable For Injuries Caused by Hard Braking


As previously discussed, a collision is not necessary in order for a motorist to be responsible for personal injuries caused to others.  This was demonstrated again in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Prempeh v. Boisvert) the Plaintiff was a passenger on a bus operated by the Defendant.  The Defendant “vigorously and abruptly applied the brakes to avoid a collision with the two vehicles which had stopped ahead of him“.  This caused the plaintiff, who was standing holding a metal handle, to be thrown down the aisle.  The Plaintiff was injured in the process.
The Plaintiff alleged the driver was negligent in braking hard.  The Defendant disagreed arguing this action was necessary to avoid collision.  Ultimately Madam Justice Dardi found the driver fully liable for the incident for driving without due care an attention.  In assessing the driver at fault the Court provided the following reasons:

[22] Mr. Boisvert was required to brake hard to avoid hitting the two vehicles that had stopped on the roadway in front of the bus he was operating. The first of the vehicles had stopped to turn left on Hamilton Street. The second car stopped behind the left-turning vehicle without a collision and without accompanying honking or screeching of brakes. It can reasonably be inferred that this occurred within a time frame that should have permitted a reasonably prudent user of the road driving behind those vehicles an opportunity to react and brake without incident. The application of the brakes was not a reaction to an emergency or unexpected hazard.

[23] Moreover, Mr. Boisvert properly conceded that, regardless of an abrupt or unexpected stop of a vehicle ahead, in order to prevent accidents prudence mandates that at all times a bus driver drive defensively and maintain a safe cushion or certain distance from a vehicle travelling in front of the bus. This is precisely to be able to stop safely in the event of an unexpected manoeuvre by that vehicle.

[24] I cannot find with precision whether the sudden and hard application of the brakes occurred because Mr. Boisvert was travelling too rapidly, not maintaining a diligent look-out or because he failed to maintain a safe distance from the vehicle in front of him. However, in weighing all of the evidence I have concluded that Mr. Boisvert’s sudden and vigorous application of the brakes, in the context of all the circumstances in this case, establishes a prima facie case of negligence against Mr. Boisvert. It is not conduct attributable to a reasonably prudent bus driver.

[25] Having found a prima facie case of negligence the onus is upon the defendants to establish that Mr. Boisvert was not negligent or that the incident was attributable to some specific cause consistent with the absence of negligence on his part.

[26] I note that Mr. Boisvert’s assertion at his examination for discovery that he could have stopped smoothly but the bus brakes on the new trolley bus “grabbed” and caused a “hard stop” is no answer to this claim.

[27] Mr. Boisvert was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff cannot be expected to assume any risk associated with the operation of the vehicle which could not reasonably be anticipated by a passenger. The usual braking of a driver as he moves through traffic would not cause a passenger to be thrown to the floor so violently. Moreover it is well established on the authorities that the responsibility of a public carrier extends to ensuring that its modes of conveyance permit the bus to be operated in a safe and proper manner: Visanji at para. 32.

[28] I have considered all of the authorities provided by both parties. Though useful as providing guidance on the governing principles, each case turns on its own facts. I note that unlike the circumstances in Lalani v. Wilson, [1988] B.C.J. No. 2408 (Q.L.) (S.C.), upon which the defendant relies, the bus driver here was aware that the plaintiff had fallen – the possibility of injury was self-evident. Mr. Boisvert’s attention was drawn to such a possibility at the time of the incident and in compliance with the bus operator training manual he should have recorded all pertinent information regarding the incident. While the court in Lalani found it would have been unfair to shift the burden, this is not so in this case.

[29] On balance I am not satisfied that the defendants have shown that Mr. Boisvert conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit. In the result, I conclude that Mr. Boisvert, however fleetingly, breached the standard of care of a reasonably prudent bus driver. I find the defendants negligent.

Oiled Stripper Loses Slip and Fall Lawsuit

Written by admin on . Posted in Occupier's liability claims, Uncategorized. 46 Comments on Oiled Stripper Loses Slip and Fall Lawsuit

Reasons for judgement were released yesterday by the BC Supreme Court, Chilliwack Registry, dismissing a personal injury lawsuit following a slip and fall.
In yesterday’s case (Newsham v. Canwest Trade Shows Inc.) the Plaintiff, a male stripper, slipped and allegedly injured his knee while performing at the Naughty but Nice Sex Show.  The Plaintiff sued for damages alleging he slipped due to an “oily substance on the stage floor“.  Mr. Justice Brown ultimately dismissed the claim.  In doing so the Court noted the oily substance was possibly baby oil the Plaintiff used in his own performance.  Mr. Justice Brown provided the following reasons:

148] With respect to the negligence claim, I find the following:

a)       The plaintiff has failed to prove the defendant breached any duty of care it owed to the plaintiff under the Occupiers Liability Act or at common law:

i.        The evidence, considered as a whole, falls short of proving on a balance of probabilities that a hazardous substance was present on the stage at the material time and was responsible for the plaintiff’s slip.

ii.        Even if the plaintiff had established that a slippery substance was the cause of his slip, it is equally likely that the slippery substance in question was residue of baby oil the plaintiff used for his performance as it was body paint left from an earlier performance on the stage.

iii.       Moreover, it is also possible that the slip was caused by the plaintiff’s prior knee injury and thus independent of any slippery substance.

iv.       Even if the plaintiff had successfully identified a slippery substance as the cause of his slip, particularly the body paint from a prior performance, he still failed to establish that its presence was caused by the failure of the defendant to provide a reasonably safe environment in which he would perform.

b)       Even if the plaintiff had succeeded in proving the defendant breached its duty of care, he would have still failed to prove the defendant’s negligence as the cause of the injury he sustained, which I find the evidence, considered as a whole, shows was just as likely precipitated by the prior condition in his right knee as by the presence of a slippery substance on which he may have slipped during his performance.

c)       I find it equally likely that any slip and resulting injury the plaintiff experienced related to the nature of his performance and the condition of his knee at the time of the performance as to the presence of a hazardous substance on the stage.

The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

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

(Image via wikipedia)
One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.
In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome.  His records were exchanged in the litigation process.  As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.
The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report.  Master Baker dismissed the application noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule.  In dismissing the application Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.