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Social Host Lawsuit Involving "Disastrous" Injury Survives Summary Dismissal Application

Written by admin on . Posted in BCSC Civil Rule 9, ICBC Liability (fault) Cases, Uncategorized.


Important reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that given the right circumstances a ‘social host’ can be found negligent if one of their guests becomes impaired and subsequently causes a motor vehicle collision.
In this week’s case (Sidhu v. Hiebert) the three infant plaintiffs were injured in a motor vehicle collision.  They were passengers in their parents vehicle which was struck by another motorist.  There was evidence that the driver of the other vehicle was previously at a social party where he consumed alcohol.   There was also evidence that he had blood alcohol content high enough that he “would have had to drink between 20 and 26 ounces of hard liquor to produce such a result“.  The liquor was not necessarily all consumed at the social gathering.
One of the infant plaintiff’s was “disastrously injured”  with his spinal cord severed in the high cervical area.
The lawsuit was launched alleging negligence against not only the motorists but also the social host.  The social host brought an application for summary dismissal arguing that the 2006 Supreme Court of Canada judgement of Childs v. Desormeaux eliminated the possibility of success in social host lawsuits.  Mr. Justice Johnston disagreed and dismissed the Defendant’s motion.
The Court held that given the right circumstances social host lawsuits can succeed but given some conflicts in the evidence presented this specific case was inappropriate for summary disposition.  In dismissing the application Mr. Justice Johnston provided the following reasons:
[32] Whether a duty had been established on the face of it depended on the answer to this question: “What, if anything, links party hosts to third-party users of the highway?” (Childs, para. 24)…

[43] The court says at para. 31:

… However, where the conduct alleged against the defendant is a failure to act, foreseeability alone may not establish a duty of care. In the absence of an overt act on the part of the defendant, the nature of the relationship must be examined to determine whether there is a nexus between the parties. Although there is no doubt that an omission may be negligent, as a general principle, the common law is a jealous guardian of individual autonomy. Duties to take positive action in the face of risk or danger are not free-standing. Generally, the mere fact that a person faces danger, or has become a danger to others, does not itself impose any kind of duty on those in a position to become involved. [Emphasis in original.]

[44] I take from this passage that this aspect is also evidence-driven, in that whether there is a nexus between the parties will depend on the nature of any relationship revealed by the evidence. The passage also suggests that if there is more than a “mere fact that a person faces danger,” again revealed in the evidence, the general statement may not apply.

[45] The court in Childs summarized three situations where courts have in the past imposed positive duties to act: where a defendant has intentionally attracted and invited third parties to inherent and obvious risks created or controlled by the defendant; where there is a paternalistic, supervisory or controlling relationship between defendant and plaintiff; and where the defendant is engaged in a public function or commercial enterprise that implies responsibility to the public.

[46] I agree with counsel for Mr. Rattan that this case does not fit comfortably within any one of these three situations, but I also note that the Court in Childs at para. 34 said these were not strict legal categories, but serve to elucidate factors that can lead to positive duties to act.

[47] After pointing out that the three situations have in common the defendants’ “material implication in the creation of the risk or his or her control of a risk to which others have been invited,” and the reluctance of the law to infringe on the personal autonomy of someone in Mr. Hiebert’s position without good reason, the Court at para. 39 points out that someone in Mr. Rattan’s position might be expected or required by law to impinge on Mr. Hiebert’s autonomy only when he has a special relationship to the person in danger (not apparent here), or “… a material role in the creation or management of the risk.”…

[56] Because I am persuaded that this case should be decided on a full record of evidence at trial, I conclude that I should leave to trial the question of whether motorists can reasonably rely on a social host to not exacerbate an obvious risk by continuing to supply alcohol to an apparently impaired guest who the host knows will drive away from the party. It seems to me that justice requires that I allow the parties to develop the evidence and argument on a full trial.

[57] Mr. Rattan’s application is dismissed with costs in the cause.

This case is also worth reviewing for the Court’s discussion of whether a passenger in the alleged impaired driver’s vehicle could be found liable.  The Social host brought ‘third party’ proceedings against the motorists passenger arguing that if they are liable then the driver’s passenger should be as well.  Mr. Justice Johnston dismissed this allegation finding that even viewing the evidence in the most favourable light this allegation would fail.  The Court provided the following reasons:

[65] If I assume for the purposes of this application that the evidence showed that Mr. Braun and Mr. Hiebert arrived together at the party in an intoxicated condition, both continued to drink Mr. Rattan’s alcohol to excess at the party, and both left together at the end, in a more intoxicated condition than when they arrived – with Mr. Hiebert driving and Mr. Braun as his passenger – is there a possibility that the first branch of the Anns test might be satisfied? My answer is no.

[66] The language in Childs that might allow a court to conclude that a social host owes a duty of care to highway users injured by a driver who becomes impaired as a guest of the host does not go so far as to admit the possibility of a duty on a companion or fellow traveler who does no more than observe the risky behavior of the drinking guest, and perhaps acquiesce to an extent in the risk by drinking with and then accepting a ride home from the party with the drunken guest.

Compelled Independent Medical Exams and "Consent"

Written by admin on . Posted in BCSC Civil Rule 13, BCSC Civil Rule 7, independent medical exams, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court.  In short the Court held that this was possible.
In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages.  In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam.  At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination.  The Plaintiff refused to sign this.  The Defendant brought an application to compel this document to be signed.  In granting the application Madam Justice Hyslop provided the following reasons:

[79] Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[80] In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)

grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.

[81] By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.

[82] When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.

[83] Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.

[84] The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.

For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here.  From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.

$200,000 Non-Pecuniary Damage Assessment For Chronic Physical and Psychological Injuries

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Shoulder Injury Cases, ICBC Wrist Injury Cases, Uncategorized.

Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.
In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000.  In arriving at this figure Mr. Justice Grist provided the following reasons:




[30] In this case, the physical injuries continuing to affect the plaintiff include: the injury to her left shoulder, left wrist and left ankle; as well as persistent pain in her neck and back. The pain in her neck and back limits her ability to sit for any extended period of time and is associated with the onset of headaches.

[31] The residual effect of the collision, however, is markedly more significant because of the PTSD and depression that she suffers. Combined, there is significant loss in respect of her vocation, family life and social activities…

[33] Ms. Felix’s life has markedly changed following the collision. She is now reliant on her daughters to assist in keeping her home. She receives psychological therapy, is treated with anti-depressant medication and has been prescribed Ativan and Valium to allow her to sleep. She has not been able to work and has been forced to live off of disability benefits and funds realized by re-mortgaging her home. The evidence from her daughter and her two long-time friends who gave evidence on her behalf was that her level of activity and previously bright outlook on life had markedly changed. Her daughter was concerned that, at times, she seemed suicidal. She said that she noted some improvement after she attended the pain clinic in the spring of 2010 and that she seemed a little happier and better able to manage her pain, but that she had regressed since and lacked focus and initiative. She said she often appeared to be in pain, had become short tempered and withdrew from contact with family and friends.

[34] Many of the same comments were made by her friends who commented on the difficulty in getting her to attend social functions, her lack of participation and stamina, and her fragile emotional state.

[35] For a time, she formed a relationship with an individual she met through a common friend, but they have since separated which she attributed to her depression and inability to join in social activities he wanted to participate in. She relates that she began to abuse alcohol to the point she feared she was alcoholic…





[38] It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…
[47] On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix’s personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.
It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim.  Despite this, the case still has value as a precedent for non-pecuniary damage assessments for chronic pain following a motor vehicle collision.

ICBC Part 7 Exam Once Again Thwarts Defence Medical Exam Request

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

Earlier this month I discussed a case dismissing a defence application for an ‘independent’ medical exam where the Plaintiff already attended an ICBC arranged medical examination.  Further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, with the same disposition.
In this week’s case (Soczynski v. Cai) the Plaintiff was injured in a 2008 collision.  Both she and the Defendant were insured by ICBC. As is the usual practice in BC, the same ICBC adjuster was handling the Plaintiff’s claim for no-fault benefits and also her tort claim.
The adjuster arranged an independent medical exam with an orthopaedic surgeon.  The Plaintiff attended.  In the course of the lawsuit the Defendant brought a court motion to compel the Plaintiff to be examined by a second surgeon.  The motion was dismissed, however, with the Court finding that the previous ICBC exam created a ‘level playing field’.  Master McDiarmid provided the following useful reasons:
[21] In reviewing the facts in this case, and keeping in mind the main principle to be looked at here, the principle of keeping the parties on an equal footing, I find that in the circumstances of this case, and in particular, the fact that the ICBC adjuster was handling both the Part 7 and tort claims, and did not respond when she knew that the plaintiff’s position was that the examination in front of Dr. Bishop was to deal with both those claims, I find that the examination which took place at the behest of ICBC on January 27, 2009 by Dr. Paul Bishop constituted the first medical examination as contemplated by Rule 7-6(1). The defendants want a further examination by another medical practitioner who practices in the area of orthopaedics. The plaintiff is not relying on any orthopaedic specialists. Keeping in mind the “level playing field” principle, it is not appropriate to order a further examination of the plaintiff by a medical practitioner having expertise in the area of orthopaedics.
For an example of a recent case where an ICBC Part 7 exam which went beyond Part 7 matters did not prohibit a tort Defence Medical exam you can click here to read Master MacNaughton’s recent reasons for judgement in Assalone v. Le.

Silence Means Loser Pays

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized. 66 Comments on Silence Means Loser Pays


If a BC Supreme Court Judgement is silent with respect to costs following trial the default Loser Pays system kicks in as a result of Rule 14-1(9).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this default position.
In last week’s case (Habib v. Jack) the Plaintiff’s personal injury lawsuit was dismissed following trial. The trial Judge’s reasons did not set out any costs order.  The Defendant sought their costs but the Plaintiff opposed this arguing that silence on costs in the trial judgement makes the issue ‘res judicata’.  Madam Justice Ross disagreed and provided the following short but useful reasons:
[9] The plaintiff’s res judicata argument has previously been considered and rejected by this court. In Graham v. Great West Life et al., 2004 BCSC 1544, Sinclair Prowse J. considered the argument that silence in earlier reasons for judgment regarding costs is tantamount to an order that there will not be an order for costs. After reviewing the authorities she found that if reasons are silent, by operation of Rule 57(9), there is a presumption that costs will follow the event unless either party objects to the order being framed in that manner, in which case an application for costs should be made to the court. The present Rule 14-1(9) contains the same presumption.

ICBC Psychiatrist Criticized for Not Being "An Impartial Expert"

Written by admin on . Posted in Uncategorized.

In my continued efforts to archive judicial critisism of expert witnesses who cross the line into ‘advocacy’, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, finding a psychiatrist retained by ICBC failed to provided evidence with “the sufficient degree of objectivity“.
In this week’s case (Drodge v. Kozek) the Plaintiff was involved in 2006 collision.  He suffered chronic pain and cognitive dysfunction following the crash.   ICBC retained a psychiatrist who authored a report and provided opinion evidence to the court which, in contrast to the Plaintiff’s treating doctor, placed less emphasis on role of the collision with respect to the Plaintiff’s complaints.
The Court found that this psychiatrist was not sufficiently objective and placed ‘little weight‘ in his opinion.  Madam Justice Dardi provided the following criticism:

[49] Dr. Solomons is a qualified psychiatrist who at the request of ICBC examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2, 2009. At trial I ordered that certain contents of his report be expurgated, on the basis that the statements were not properly admissible opinion evidence.

[50] Dr. Solomons opined that Mr. Drodge did not sustain any functional brain injury as a result of the accident; nor did he develop any psychiatric condition or disorder as a result of the accident. It is Dr. Solomans’ view that the pre-conditions for the diagnosis of post-traumatic stress disorder were not met in this case. Rather, in his opinion Mr. Drodge presented with non-specific stress symptoms that potentially related to a number of causes, including physical pain, unemployment, financial constraints, and boredom. Other than some stress associated with his financial difficulties, he opined that Mr. Drodge’s present psychological status is “essentially normal”. Insofar as a prognosis, Dr. Solomans opined that there are no cognitive or psychiatric concerns, and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for any vocational activities.

[51] In cross-examination Dr. Solomans admitted that a person could suffer from cognitive symptoms as a consequence of severe headaches. He agreed that headaches of this nature could affect someone’s mood and their ability to work, and that the headaches could therefore be disabling.

[52] Although Dr. Solomons maintained that Mr. Drodge did not exhibit any cognitive difficulties during his interview, the evidence supports a finding to the contrary. In cross-examination he acknowledged that his notes from the interview indicate as follows:

Not had cognitive tests. Then he says did. Query name. Not remember when. About 18 months to two years ago. Not remember the feedback about the test results.

Not recall anything about it at all, not even why he was treated.

Moreover, Mr. Drodge had mistakenly told him he had sustained his back injury in 1986; his back injury occurred in 1996.

[53] In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

$70,000 Non-Pecuniary Damages for Thumb Joint Injury

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


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $70,000 for a serious thumb injury.
In this week’s case (Dobre v. Langley) the Plaintiff cyclist was struck by a vehicle.  He suffered a right thumb “Bennett Fracture” (a fracture at the base of the thumb where it connects with the wrist).  The Plaintiff was 20 years old at the time of injury.  He required surgery to fix the fracture.  Unfortunately the Plaintiff was left with limitations of the thumb and these were expected to continue and worsen with age with the onset of post-traumatic arthritis.  In assessing the non-pecuniary damages at $70,000 Mr. Justice Brown provided the following reasons:

[58] While there are some discernible slight divergences between the opinions of Dr. Gropper and Dr. Smit, in substance they are not large ones. I accept that within the span of 15 years Mr. Dobre will experience some worsening of his degenerative arthritis that carries with it a risk that by middle age it could become severe and accompanied by a corresponding decline in function. There is also a chance Mr. Dobre could make his way into his middle age years without experiencing a significant decline in function, but the chances are greater that he will do so by then. While confident predictions about his needing future surgery are not possible, given the early onset of degenerative changes and the nature of his fracture, there is at least some risk he will require future surgery with doubtful benefit.

[59] Mr. Dobre feels dull intermittent pain at the base of his thumb, where the surgical nails were inserted. Moreover, his grip is weaker and his thumb is stiff. Prolonged grabbing and pulling brings the rapid onset of piercing pain. Prolonged writing causes discomfort and his thumb discomfort bothers him when he is writing university exams. In his part time job as a librarian, he finds he cannot hold many books when sorting them throughout the library. Due to his injury, he has to hold the books in an awkward position to avoid stressing the thumb…

[92] I find Mr. Dobre’s injuries are more akin to those in Tsougrianis, in which the 22 year old plaintiff suffered fractures to both thumbs, one of which required surgery, soft tissue injuries to her neck and back, and tendonitis.  The Court found the soft tissue injuries and tendonitis would heal within a year of the trial.  With respect to the thumb injuries, the Court found the plaintiff’s right thumb injury had largely resolved itself by trial and there was “not a substantial possibility” the left thumb injury was a permanent functional disability: Tsougrianis, at para. 35.  Furthermore, the Court found the plaintiff’s pain, strength and gripping difficulties in the left thumb would eventually disappear with exercise and further surgery, with the exception of “fine precision” handiwork:Tsougrianis, at para. 36. This is not the case for Mr. Dobre.   Given the permanence of Mr. Dobre’s right thumb disability and the likely onset of arthritis, his injuries, all factors considered, appear somewhat worse than those of the plaintiff in Tsougrianis.

[93] I find an award of $70,000 for non-pecuniary damages is appropriate in the circumstances if the $5,000 assessed for loss of home making/maintenance capacity is included in that amount. I therefore award $70,000 for non-pecuniary damages, an amount that includes a specific segment of $5,000 for loss of home making/maintenance capacity.

This case is also worth reviewing for the Court’s discussion of diminished earning capacity.   Given the Plaintiff’s young age he had no set pattern of earnings prior to the injury.  In these cases it is more difficult to predict the consequences of injury on long term employment.  Mr. Justice Brown assessed damages of $60,000 for diminished earning capacity in doing so made some practical comments at paragraphs 65-74 of the reasons for judgement.

Historic Sexual Abuse Claim Results In $59,000 Damage Assessment

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for historic sexual abuse.
In this week’s case (R.D. v. G.S) the Defendant stepfather was found liable for abusing his stepdaughter when she was aged 8-12.  The Plaintiff suffered psychological harm as a consequence of this.  Her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $35,000.  In arriving at this figure Madam Justice Smith made the following findings with respect to the harm caused by the abuse:

[145] I have considered all of the evidence regarding the plaintiff’s psychological injury, including her testimony and the opinion evidence of Dr. Hotz and of Dr. O’Shaughnessy.

[146] I accept the plaintiff’s evidence regarding the symptoms she has experienced.  She was cross-examined at some length, and was consistent and convincing in describing her enormous sense of betrayal and destruction of trust, as well as her persistent experience of intrusive dreams, intrusive thoughts, anxiety, depression, low self esteem and low self confidence.

[147] As to the experts, with respect to the existence of a psychiatric disorder I prefer the evidence of Dr. O’Shaughnessy over that of Dr. Hotz.  I reach that conclusion because Dr. O’Shaughnessy clearly separated out the facts upon which he was relying from his opinions, is highly experienced in this area, has a higher degree of expertise and seemed to retain more objectivity in his approach.  I accept, accordingly, that the plaintiff does not currently suffer from a psychiatric disorder and it is unlikely that she has suffered from one in the past.

[148] I find, however, that she does suffer from psychological dysfunction that has interfered with her ability to pursue education or a more rewarding career, and that has interfered with her ability to build good relationships and to enjoy life.  The extent to which the psychological dysfunction finds its origins in what the defendant did is the question.  I find that he is responsible for it in some measure, although it also has other causes…

[214] The defendant’s position is that there is no evidence of harm to the plaintiff caused by the defendant’s actions, and there should be no award of general damages.

[215] I will consider the factors referred to in Y.(S.) v. C.(F.G.), in assessing the appropriate award for non-pecuniary damages.

[216] I begin with the nature of the assault.  In comparison with the sexual assaults found to have occurred in many other cases, the sexual touching in this case was not violent, intrusive, frequent, coercive or egregious.

[217] The breach of trust, however, was egregious, both with respect to the sexual touching that began when the plaintiff was quite young, and with respect to the defendant’s addition of photographs of the plaintiff to his collection of child pornography.

[218] I did not see any evidence of remorse on the defendant’s part.  His conduct with his stepdaughter was callous and reprehensible.  I do not overlook that the defendant himself was the victim of blatant disregard for his property and disrespect for his attempts to preserve his household and its contents after the children moved in.  However, he was the parent and the plaintiff was the child.  The fact that the plaintiff behaved badly toward him provides no justification for his behaviour toward her.

[219] The evidence of Dr. Hotz and Dr. O’Shaughnessy shows that the conduct of the defendant had a significant impact on the plaintiff’s psychological state.  I note as well that she would likely have experienced some level of psychological dysfunction in any event, and that the impact is unlikely to be permanent.

[220] I assess general damages, taking into account the aggravating factors I have described, at $35,000.

"Nominal" ICBC Offer Fails To Trigger Double Costs Award

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 59 Comments on "Nominal" ICBC Offer Fails To Trigger Double Costs Award


As previously discussed, BC has a true ‘loser pays‘ system which generally requires the loser of a lawsuit to pay the winners costs.  If a Defendant makes a formal settlement offer and defeats the Plaintiff’s lawsuit the Court has the discretion to award double costs.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, refusing to make such an order in circumstances where the formal offer was little more than a walk-away offer.
In last week’s case (Habib v. Jack) the Plaintiff was injured while riding as a passenger in the Defendant’s bus.  The parties agreed on the value of the Plaintiff’s injuries but disagreed on the issue of fault.  Prior to trial ICBC made a formal settlement offer of $1,000.  The Plaintiff rejected this offer, proceeded to trial, and had her claim dismissed.
ICBC was awarded costs and asked the Court to award double costs pursuant to Rule 9-1(5).  Madam Justice Ross refused to do so noting that the offer was ‘nominal’ and that it was not unreasonable for the Plaintiff to have her day in court.  The court provided the following helpful reasons:

[15] The defendants submit that having regard to the factors enumerated in the Rule, the court ought to award double costs. Counsel submits that the offer was not nominal; it gave the plaintiff modest recovery and represented a willingness to compromise that the Rule is meant to foster. The offer was made at a time when the discoveries of both parties were complete and the evidence was known. The plaintiff’s position is that this was a nuisance offer and it cannot be said, without applying hindsight, that it ought to have been accepted.

[16] At the time the offer was made, it was clear that the plaintiff had suffered an injury. There was a dispute with respect to liability. Mr. Jack had limited recollection. The only two witnesses were Ms. Habib and Mr. Jack.

[17] In my view the offer was nominal given Ms. Habib’s injury. I agree with the observations of Burnyeat J. in Martin v Lavigne and Neufeld (Costs), 2010 BCSC 1610 at para. 13, that there are situations in which a nominal offer should have been accepted. However, in my view this is not such a case. It cannot be said that it was clear that the action had little chance of succeeding on the merits. Rather, there was a significant risk that the case would be lost on liability. This risk materialized and the action was lost at trial; however, in the circumstances it was not unreasonable for the plaintiff to reject the offer and proceed to trial.

[18] On balance I have concluded that this is not a case to make an order for double costs as sought by the defendants based upon the offer to settle. In the result, the defendants will have their costs.

Cyclist 15% At Fault for Crash For Riding in Crosswalk

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.
In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC.  He approached  a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk.  At the same time the Defendant was driving near the middle lane of Martin Drive.  She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.
The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly.  The Plaintiff was also found 15% at fault for riding in the cross-walk.  Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases.  In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:
[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.