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$70,000 Non-Pecuniary Damages Awarded to "Stoic" Plaintiff

Written by admin on . Posted in ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.


Plaintiffs should not be punished with reduced damages in a personal injury claim simply because they are stoic in dealing with their injuries.  Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, discussing this in the context of a chronic soft tissue injury claim.
In yesterday’s case (Courtney v. Huthinson) the Plaintiff was involved in a 2008 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff, a 48 year old logger, suffered a chronic soft tissue injury to his neck which produced symptoms of pain and headaches.  The symptoms continued on to the time of trial and were not expected to further recover.
Despite the chronic nature of the Plaintiff’s injuries he carried on with a stoic attitude minimizing his complaints.  In assessing non-pecuniary damages at $70,000 Madam Justice Power made the following findings with respect the Plaintiff’s injuries and his stoicism:

[16] Dr. MacKean’s opinion was that Mr. Courtney had suffered a Grade two whiplash associated disorder to the cervical spine and upper back with persistent daily neck pain greater on the right than left side, and headaches. She is of the opinion that the ongoing persistent neck pain and headaches is due to injuries sustained in the accident.

[17] Of significance Dr. MacKean noted that:

He has most likely reached the point of maximal medical improvement. It has been almost 3 years following the date of motor vehicle accident and he has not seen significant improvement over the past two years with regards to improvement in his neck pain symptoms.

[18] Dr. MacKean in her report and in her evidence noted that the disc degeneration seen in the MRI was less likely the cause of the ongoing pain he was experiencing since it was asymptomatic prior to the accident…

[23] Mr. Courtney came across in his evidence as a quiet man who was committed to his personal health and fitness and who was conscientious and proactive about pursuing his treatment options. He did not appear to exaggerate or overstate his evidence. When he made errors in his evidence for example with respect to his work history, he acknowledged them and any errors appear to be reasonable based on the passage of time, and Mr. Courtney’s knowledge. He is clearly a hardworking man who has worked through pain caused by the accident in order to provide for his family. The ongoing pain is primarily neck pain which is aggravated by activities which require neck extension and occasional headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney. Based on the evidence I would characterize Mr. Courtney as a stoic individual…

[44] I have already found Mr. Courtney to be a stoic individual who does not complain and indeed his return to work post-collision is consistent with the behaviour of a hardworking, stoic individual. As noted, he should not be penalized as a result of his stoicism.

[45] In all of the circumstances, I conclude that an appropriate sum under this head is $70,000.

ICBC Responsibility Transferred to the Ministry of Finance

Written by admin on . Posted in Tort Reform, Uncategorized. 50 Comments on ICBC Responsibility Transferred to the Ministry of Finance


Today the BC Government announced that they will be disbanding the Ministries of Attorney General and Solicitor General and replacing them with a single “Justice Ministry“.
ICBC came under the jurisdiction of the Ministry of Solicitor General which was headed by Shirley Bond.  With this recent shake-up ICBC is being moved to the watch of the Finance Ministry.  This move now puts Kevin Falcon, pictured above, in charge of ICBC.
For more on this move you can click here to read the Times Colonist’s reporting.  Also worth reviewing is the Governments Green Paper on “Modernizing BC’s Justice System” which has just been released.

$65,000 Non-Pecuniary Assessment For TFC Tear and Mechanical Back Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Wrist Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a wrist and back injury sustained in a collision.
In last week’s case (Rutter v. Allen) the Plaintiff was involved in a 2006 collision.  The Defendants were found at fault for the rear-end crash which caused about $18,000 in damage to the Plaintiff’s vehicle.
The Plaintiff sustained a left wrist Triangular Fibrocartilage Tear (a tear to the cartilage at the base of the wrist joint) and soft tissue injuries to the low back.  The TFC tear required surgical correction.

The low back pain became chronic and continued to cause discomfort at the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Joyce provided the following reasons:
[26] Mr. Rutter alleges that he sustained an injury to his wrist as a result of the accident, specifically an “ulnar carpal impaction with a tear of the triangular fibrocartilage”. In January 2010, Dr. Perey, an orthopaedic surgeon, operated on Mr. Rutter’s wrist to shorten the ulnar bone, which largely resolved the problem with the wrist, although Mr. Rutter testified that he still had occasional sharp pains in his wrist…
[40] In my view, there is a body of evidence, which I accept that supports the opinions of the medical experts. The evidence as a whole supports a finding, on balance, that the accident was the underlying cause of the problem and that but for this accident, Mr. Rutter would not have developed the wrist problem that was eventually corrected by surgery…

[52] Mr. Rutter has an underlying spondylolisthesis, which is a condition in which the vertebrae are out of proper position, but this was largely asymptomatic prior to the motor vehicle accident.

[53] I find that Mr. Rutter’s suffers chronic back pain that was caused by the accident of December 15, 2006. I find further that it is unlikely that he will return to his pre-accident level of activity, although it is likely that he can achieve some improvement with regular exercise, including core muscle strength training…

[65] Mr. Rutter led a very active life before the accident and was involved in a number of sports, particularly golf and running. His injuries, particularly the back injury, have led to a significant change in lifestyle for Mr. Rutter. Since the accident, Mr. Rutter has had to reduce his sporting activities substantially. He is also curtailed somewhat in his day-to-day activities, including assisting with housework and household maintenance. He has difficulty sleeping and, at times, is more irritable than he was before the accident. Fortunately, Mr. Rutter has been able to maintain his full-time employment despite his symptoms. I am satisfied that Mr. Rutter finds his life today more frustrating and less enjoyable than previously. Mr. Rutter suffers chronic back pain that is likely to continue well into the future, although Dr. le Nobel is of the opinion that if Mr. Rutter engages in an exercise regime that is developed and maintained with the assistance of a physiotherapist and kinesiologist some improvement in his symptoms is probable…

[77] In my view, the chronic low back pain which Mr. Rutter experiences has a more significant impact on his life and the prognosis for significant improvement is not as good as was the case inMawji and Perez. In my view, the authorities cited by Mr. Rutter are more representative of an appropriate range of non-pecuniary damages considering the nature and effect of his injuries. I assess non-pecuniary damages at $65,000.00.

The Dangers of Passing Vehicles Near Intersections

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 160 Comments on The Dangers of Passing Vehicles Near Intersections

When a driver proceeds into the on-coming lane of travel to overtake another vehicle care must be taken.  This is particularly so near intersections.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver, Registry, addressing fault for a collision arising in such circumstances.
In yesterday’s case (Johel v. ICBC) the Plaintiff stopped at a stop sign.  She intended to make a left hand turn.  The vehicle approaching from her left was slowing and signalling intending to make a right hand turn.  The Plaintiff felt it was safe to proceed with her turn and entered the intersection.  At the same time the Defendant’s vehicle chose to pass the third party by entering the on-coming lane of travel.  A collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
The Defendant fled leaving the Plaintiff with the remedy of suing ICBC under section 24 of the Insurance (Vehicle) Act.  Ultimately Mr. Justice Bernard found the unidentified vehicle fully at fault for the crash.  In doing so the Court provided the following reasons for judgement:

[13] In the circumstances of the case at bar, the obligations of the plaintiff under the Act are found in ss. 165(2), 186, and 175(1).

[14] Section 165(2) applies to drivers making left turns at intersections where traffic is permitted to move in both directions on each highway entering the intersection. The provision sets out the obligations of a driver in such a situation. Section 186 obliges a driver approaching a stop sign to stop at the marked stop line. There is no evidence or suggestion that Ms Johel failed to comply with these rules of the road.

[15] Section 175(1) sets forth the obligations of a driver entering a through highway from a stop sign. The defendants say the plaintiff failed to yield, as required by this provision. Section 175(1) reads as follows:

175(1). If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b) having yielded, the driver may proceed with caution.

[16] The statutory obligations of the defendants are found in ss. 155(1)(c), 157(1), 159, 160, and 175(2) of the Act.

[17] Section 155(1)(c) obliges a driver to drive to the right of a single line, broken or solid, except only when passing an overtaken vehicle. There is no evidence or suggestion that the defendant driver drove to the left of the solid yellow line except for the purpose of overtaking Mr. Lam.

[18] Section 157(1) sets forth the obligations of the overtaking vehicle vis-à-vis the overtaken vehicle. There is, again, no evidence or suggestion that the defendant driver did not comply with this rule.

[19] Sections 159 and 160 set forth the obligations of drivers passing on the left. They state as follows:

159. A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

160. A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances.

[20] Section 175(2) obliges a driver on a through highway to yield to a vehicle which has entered the highway in compliance with s. 175(1). The plaintiff says the defendant driver of the white car failed to yield, as required by this provision. Section 175(2) states as follows:

175(2). If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway….

[29] Having regard to all the evidence and the positions of the parties, I find: (a) that Ms Johel was attentive and observant while stopped at the stop sign; (b) that Ms Johel proceeded with caution into the intersection and, at the time, the only traffic in her view was the car of Mr. Lam; (c) that the defendants’ white car was, at the time, to the left of Mr. Lam and, thus, hidden from Ms Johel’s view; and, (d) that at the time of collision, the white car was straddling the centre line and Ms Johel’s car was crossing it and heading slightly eastward.

[39] Having regard to all the foregoing, I conclude: (a) that when the defendant driver overtook Mr. Lam he or she did so in breach of ss. 159 and 160 of the Act; (b) that the defendant driver failed to meet the requisite standard of care; and (c) that the defendants are solely at fault for the collision.

$50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 46 Comments on $50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries arising from a motor vehicle collision.
In last week’s case (Milburn v. Ernst) the Plaintiff was operating a motorcycle when it was rear-ended by the Defendant’s vehicle.  The impact “resulted in the motorcycle becoming embedded in the gill of the (Defendant’s vehicle); to the point that only half of the motorcycle could be seen protruding from the front of the car“.
The Plaintiff, although he missed little time from work, suffered soft tissue injuries that were expected to pose long term limitations.  In assessing non-pecuniary damages at $50,000 Madam Justice Fitzpatrick made the following findings and provided the following reasons:

[96] After having considered the evidence from Mr. Milburn, the evidence of his independent witnesses and the medical evidence referred to above, I find as a fact that Mr. Milburn suffered the following injuries as a result of the accident:

a)       he was bruised in the pelvic region, he had wrist pain and he had some cognitive dysfunction and sleep disturbance, all of which were resolved shortly after the accident;

b)       he had some chest pain in the fall of 2007 arising from his temporary use of crutches after the knee surgery;

c)       he had severe pain in his neck, back and shoulder, all of which were largely resolved by December 2007;

d)       the disc bulges found to be present in Mr. Milburn’s spine were not caused by the accident but were rendered symptomatic as a result of the accident; and

e)       he continues to experience discomfort and mild pain in his neck and back from time to time, which increases to the point of severity depending on his level of physical activity and his level of physical fitness…

[105] I accept the evidence of Mr. Milburn that he enjoyed an active and physical life before the accident. In the aftermath of the accident, he experienced significant pain and discomfort relating to his injuries at that time which, for the most part, were resolved by December 2007.

[106] Since the accident, he has struggled to deal with the back and neck pain that arises from time to time, particularly given his employment, which is physically demanding and at times, can be quite physically demanding. He has not, however, required prescription medicine to deal with that, which speaks to the severity of the pain that he experiences from time to time. In addition, his doctors have recommended that with a proper exercise regime and with care taken in the manner of lifting and other physical activities, he should be able to minimize the difficulties that he might otherwise have. This recommendation appears to have been taken up by Mr. Milburn in that he is now regularly exercising on his own.

[107] His need of physiotherapy for some years now has been infrequent, a sign that the need for more formal treatment has not been great, despite what he describes as “flare-ups” in his condition.

[108] Based on the medical evidence of Dr. Badii, which I accept, his condition is not expected to materially improve from this time forward and as such, it is to be expected that Mr. Milburn will continue to suffer some pain in the future.

[109] In addition, I find that the accident has resulted in Mr. Milburn abandoning some of his recreational activities, such as kickboxing, snowboarding and rollerblading. In addition, some of his favourite activities have been curtailed. His love and enjoyment of motorcycling is now somewhat limited to the extent that he has to stop frequently while on long rides. In addition, acting roles with stunt assignments are no longer open to him, an activity that he particularly enjoyed although such roles were limited.

[110] I accept that the accident has also affected his personal life in that he has some pain accomplishing more physically demanding tasks around the home. I note, however, that he continues to enjoy what can only be called very physical activities, and no doubt more enjoyable activities, such as weightlifting, ATVing, scuba diving, snorkeling and horseback riding.

[111] I find that Mr. Milburn is entitled to non-pecuniary damages in the amount of $50,000.

This case is also worth reviewing for the Court’s discussion of the ‘adverse inference‘ principle.  In the course of the lawsuit the Plaintiff obtained two privileged medico-legal reports.  The Plaintiff maintained the claim of privilege through trial and did not introduce these reports into evidence.  The Defendant argued that an adverse inference should be drawn.  Madam Justice Fitzpatrick disagreed and provided the following reasons:

[87] The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case. Cases cited in support include Buksh v. Miles, 2008 BCCA 318 at paras. 30-35, 296 D.L.R. (4th) 608; Bronson v. Hewitt, 2010 BCSC 169 at paras. 323-337, 58 E.T.R. (3d) 14; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 at paras. 118-122. In Buksh, at para. 31, the court cites from Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at 689, that in a personal injury claim, the plaintiff “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so.”

[88] In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn. If so, Mr. Milburn could have been examined on the point and copies of clinical notes obtained, such as was done in Bouchard (see also para. 35 of Buksh). Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superior in respect of the facts to be proved.

[89] Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.

From Trial To Judgement: How Long Does It Take in an ICBC Claim?

Written by admin on . Posted in BCSC Civil Rule 13, Jury Trials, Tort Reform, Uncategorized. 53 Comments on From Trial To Judgement: How Long Does It Take in an ICBC Claim?


Unless you work in the civil justice system or have recently accessed the Courts to resolve a civil dispute it may come as a surprise to learn that usually a verdict is not rendered by a trial judge until some time after the close of the case.  So how long does it take?  Other than giving the unsatisfactory answer of “it varies” I’ve never had any concrete data to point to in addressing this question until now.
The latest issue of the Trial Lawyer’s Association of BC’s magazine “the Verdict” (Issue # 130) sheds some light on this topic with hard data.
Two BC lawyers (Thomas Harding and Derek Miura) spent some time analyzing information obtained from ICBC through Freedom of Information requests.  With this information in hand they authored an article addressing the commonly held belief that judge alone trials are less costly and time consuming than trial by jury.  Interestingly their study concludes that the opposite of this appears to be true when factoring in the time and cost associated with reserved reasons for judgement.
Their statistical analysis shows how long it takes judgement to be delivered after the average Judge alone ICBC trial in BC Supreme Court.  The answer is a ratio of 29 days for every day of hearing.  In other words, on average a one day trial would have judgement pronounced 29 days after trial.  A 5 day trial would take 5 times longer (145 days) and the average 10 day trial would take 290 days for judgement.
In addition to shedding light on this topic, the recent installment of the Verdict is worth reviewing in full for its in-depth analysis of the current state of the law relating to civil jury trials in BC.  It is available free on-line for TLABC members and can be subscribed to by the public at large for a fee.

$50,000 Non-Pecuniary Damages For Concussive Injury With Serious Forehead Laceration

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a concussive injury sustained in a motor vehicle collision.
In last week’s case (Abdalle v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was injured in a 2007 intersection collision.  The force of impact propelled the Plaintiff into his vehicle’s windshield resulting in a concussive injury, significant scarring and various soft tissue injuries.
The injuries largely improved in the following years but the Plaintiff was left with some residual symptoms in addition to his forehead scar.  Madam Justice Ross assessed non-pecuniary damages at $50,000 (although this figure was then reduced to $27,500 for the Plaintiff’s failure to wear a seatbelt and further for his failure to mitigate his damages).  In arriving at this figure the Court provided the following reasons:

[92] In this case I have concluded as noted above that Mr. Abdalle suffered a serious laceration, concussion and soft tissue injury to his neck and back in the accident. He was left with a significant scar on his forehead. He suffered from nausea, dizziness, headache pain and stiffness in his neck and back as a result of his injuries. He was significantly disabled and largely bedridden from the time of the accident until September 2007, when he was able to return to work. He was not able to attend to functions of daily living such as cooking and household chores at this time and was unable to engage in the many activities that he had enjoyed before the accident. His sleep and mood were affected.

[93] With the passage of time his symptoms improved. As he conceded in his examination for discovery, the dizziness was essentially resolved after a year. By October 2009 he was experiencing headaches perhaps twice a month and flare ups of neck pain every couple of months. I accept that he continues to experience periodic flare ups of neck and back pain and headache.

[94] He was able to return to work in September 2007 and has been able to function at the workplace since that time. While he has not returned to his pre-accident level of activity, I find that the injuries he suffered in the accident do not and will not prevent him from taking part in any vocational or recreational activities. Upon a review of the cases cited by counsel and having regard to my findings concerning Mr. Abdalle’s injuries and their impact on his activities and the quality of his life, I assess non-pecuniary damages prior to reduction for mitigation and contributory fault at $50,000.

Pedestrians, Crosswalks and the Duty To Yield The Right of Way

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


While Pedestrians are allowed to cross streets in a crosswalk the right is not absolute.  One limitation in section 179 of the BC Motor Vehicle Act addresses pedestrians walking in front of a moving vehicle “that is so close it is impracticable for the driver to yield the right of way“.  In these circumstances a Pedestrian could be faulted for a resulting collision even if they would otherwise have the right of way.  Reasons for judgement were released yesterday by the BC Supreme Court, Nelson Registry, considering this obligation in a personal injury lawsuit.
In yesterday’s case (Cairney v. Miller) the Plaintiff was injured in a 2009 collision.  The Plaintiff was crossing in a marked cross-walk in Nelson, BC, when he was struck by the Defendant.  As the Defendant was driving she “slowed down to look for a parking spot when she suddenly felt a bump on the left side of her car.”  The Defendant failed to see the Plaintiff and the Court ultimately found the Defendant at fault.
The Defendant went on to argue that the Plaintiff should be held partially at fault because he should have realized she was not yielding the right of way.  Mr. Justice McEwan rejected this argument and provided the following reasons:
[25] Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.

[26] Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.

[27] This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.

[28] I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way (See Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at para. 23 above).

[29] The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.

[30] Accordingly, I find the defendant fully liable for the collision.

$90,000 Non-Pecuniary Damages For Visual Vestibular Mismatch

Written by admin on . Posted in ICBC Dizziness Cases, Uncategorized.

Visual Vestibular Mismatch is a medical condition which can result in dizziness, imbalance and nausea.  The consequences of these symptoms can be severe and disabling.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing a claim for damages arising from VVM resulting from a motor vehicle collision.
In last week’s case (Moukhine v. Collins) the Plaintiff was injured in a 2007 rear-end collision in Vancouver, BC.  Fault was admitted by the rear motorist.   The Court heard competing medical evidence as the consequences of the collision and ultimately accepted that the Plaintiff suffered from a visual vestibular mismatch as a result of the crash.
The prognosis was poor with the symptoms expected to plague the Plaintiff indefinitely.  The Plaintiff worked as a senior application developer and following the collision was never able to resume full time hours.  In assessing non-pecuniary damages at $90,000 Mr. Justice Watchuk provided the following reasons:
[195] I find Mr. Moukhine to be a credible witness. I accept that his descriptions of heaviness or fog or, sometimes, mist in the head describe what is to the doctors a form of dizziness. I accept that this feeling and the inability to concentrate or “think through” prevents him from working at his job as a computer programmer for more time than he describes that he is now able to work…

[225] I conclude on the evidence as a whole that the Mr. Moukhine has proven that as a result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which has not resolved.

[226] I accept Dr. Longridge’s opinion that it is unlikely that there will be further significant improvements to Mr. Moukhine’s condition or symptoms.

[227] As has been described above, this injury has had a significant effect on Mr. Moukhine.  It has resulted in continuing dizziness, primarily when he works on the computer.  He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.

[228] Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.

[229] The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.

[230] I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.

[231] At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating…

[233] Each case is to be assessed on its particular facts. Considering all of the circumstances in this case including Mr. Moukhine’s age, the effects of the injuries sustained in the accident and Dr. Longridge’s opinion that the vestibular injury is likely permanent, I assess non-pecuniary damages at $90,000.

Insurance Policy Limits Relevant to Formal Settlement Offer Costs Analysis

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 7, BCSC Civil Rule 9.


In 2010 the BC Court of Appeal found that Judges could consider the existence of insurance when exercising costs discretion following a trial in which a formal settlement offer was made.  Last week reasons for judgement were released by the BC Supreme Court, Victoria Registry, expanding on this principle finding that the limits of insurance coverage were equally applicable.
In last week’s case (Meghji v. Lee) the Plaintiff suffered brain trauma after being struck by a motorist while walking in a marked cross-walk in 2003.  At trial the motorist was found 90% at fault for the crash with the Ministry of Transportation shouldering the remaining 10% for designing the intersection with inadequate lighting.
Following trial the Plaintiff applied for double costs as the trial result exceeded a pre-trial formal settlement offer she made.   The Defendant wished to place information relating to his insurance policy limits before the Court before a costs decision was made.  In finding this was appropriate Mr. Justice Johnston provided the following reasons:

[6] Rule 7-1(4) reads:

(4)        Despite subrule (3), information concerning the insurance policy must not be disclosed to the court at trial unless it is relevant to an issue in the action.

[7] Subrule (3) requires a party to list in his or her list of documents insurance policies that, generally speaking, might be available to satisfy a judgment in whole or in part should the judgment be entered.

[8] Mr. Lee has responded by arguing that the trial is over (subject, of course, to an application to re-open prior to entry of judgment), and even if the trial is not at an end, his policy limits are now relevant to an issue in the action, being costs. That relevance can fall under one or more of the considerations set out in Rule 9?1(6).

[9] Counsel for the Ministry of Transportation and Highways (MoTH) disagrees as to the relevance of Mr. Lee’s insurance limits.

[10] I have concluded that the amount of Mr. Lee’s automobile liability insurance limits is relevant to the considerations set out in Rule 9-1(6). The amount of available insurance could affect the question whether the offer was one that ought reasonably to have been accepted, and it could also affect the weighing of the relative financial circumstances of the parties.

[11] Counsel for Mr. Lee is authorized and directed to disclose the amount of Mr. Lee’s liability insurance limits operative at the time of the accident.