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Personal Injury Claims and The "Admission" Exception to the Hearsay Rule

Written by admin on . Posted in Civil Procedure, Uncategorized. 126 Comments on Personal Injury Claims and The "Admission" Exception to the Hearsay Rule


Hearsay is an out of Court statement introduced at trial for the truth of its contents.  Generally hearsay evidence is not admissible in Court but there are several exceptions to this.
One well established exception to the hearsay rule is the rule of “admissions against interest“.  If a party to a lawsuit says something that hurts their interests that statement can generally be admitted in Court for its truth.  Reasons for judgement were released today discussing this important principle in a personal injury lawsuit.
In today’s case (Jones v. Ma) the Plaintiff was injured in a BC motor vehicle collision.   After the crash the Plaintiff approached the Defendant and the Defendant admitted fault.   The Plaintiff then asked the Defendant’s permission to record their discussion using her cell-phone.  The Defendant consented and repeated this admission of fault.
In the formal lawsuit the Defendant denied being at fault for the crash and instead sought to blame the Plaintiff.  At trial the Plaintiff introduced the the cell phone recording into evidence.  The Defendant objected arguing that this was inadmissible hearsay.  Mr. Justice Ehrcke disagreed and admitted the evidence finding that if fit the “admissions” exception to the hearsay rule.  In reaching this decision the Court provided the following useful summary and application of the law:
…the admissibility of an out of court admission by a party to a lawsuit….was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:

Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans [1993] 3 S.C.R. 653, at page 664:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all.The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.  [Emphasis in original].

[10]         I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.

[11]         The evidence tendered by the plaintiff in this case of her conversation with the defendant Ma at the scene of the accident is admissible in evidence.

[12]         The cell phone recording which was marked as Exhibit A on the voir dire and the transcript of the recording which was marked as Exhibit B may now both be marked as exhibits on the trial proper.

[13]         The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence. This is a civil case. Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of theCanadian Charter of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff was not a person in authority and that she was not a state agent, as those terms are used in the context of confessions in criminal cases.

[14]         The defendant’s concern that only part of the conversation was recorded, that the defendant had hurt her head, that the defendant did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence. They do not form a basis for the exclusion of the evidence.

More on ICBC Injury Claims and Plaintiff Credibility

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

As I’ve previously written, Plaintiff credibility plays an important role in most personal injury lawsuits.  This is particularly true in soft tissue injury cases.  Reasons for judgement were released today by the BC Supreme Court highlighting the impact that an adverse finding of credibility can have on a claim.
In today’s case (Sarowa v. Gill) the Plaintiff was injured in a 2006 motor vehicle collision in the lower mainland.  The defendant lost control of his vehicle and entered the Plaintiff’s lane of travel causing an impact which resulted in “significant damage” to the Plaintiff’s vehicle.  Fault was admitted focusing the trial on the value of the Plaintiff’s personal injury claim.
The Plaintiff gave evidence that that she suffered various soft tissue injuries which continued to bother her by the time of trial.  This was supported by the evidence of a physiatrist.  However, the Physiatrists evidence was not accepted by the Court because of  “deficiencies, omissions, and factual errors in (the doctor’s) report“.
Instead the Court preferred the evidence of Dr. Boyle, an orthopaedic surgeon ICBC arranged for the Plaintiff to see.  Dr. Boyle’s evidence included the following damaging observations:
Dr. Boyle’s opinion was that she had suffered a myofascial strain of the cervical and lumbar muscles as a result of the accident, but that the injury was mild.  He observed Ms. Sarowa to display exaggerated “pain behaviour” throughout the interview and examination.  He noted that she moaned, groaned and grimaced.  He said that patients who are in pain generally avoid a lot of movement in order to avoid discomfort, but Ms. Sarowa was restless.  When she was specifically asked to demonstrate range of motion it appeared quite limited, but she demonstrated a much freer range of motion spontaneously during the interview and other parts of his assessment.  He said that she could freely straight-leg raise from a sitting position, but couldn’t bend forward when standing ? an inconsistent presentation from an anatomical point of view.
The Court went onto to award little in the way of damages and in doing so made the following findings about the Plaintiff’s credibility:

[68]         Ms. Sarowa testified that she has not fully recovered from her accident injuries and continues to have neck and back discomfort, and frequent headaches.  As is usually the case, much of the plaintiff’s case rests on the extent to which the plaintiff is found to be a credible witness.  In this case, Ms. Sarowa was a less than satisfactory witness.  She was frequently evasive and non-responsive.  She was unable, or declined, to explain why she had claimed to be separated from her husband on December 31, 2007 when filing her 2007 tax return; but claimed at trial that she and her husband were back together at that time.

[69]         If she was being truthful at trial about the severity and duration of her accident injuries, than I would have to conclude that she omitted relevant information about her health when she applied for the job at Tim Horton’s in April 2007, and was deliberately untruthful when she applied for work at Brinks in September 2008.  I think it more likely that she was exaggerating the severity and duration of her injuries when testifying here at trial; as the evidence of her employers at Tim Horton’s and Brinks indicates she did not, in fact, demonstrate any difficulty with the physical performance of her job duties.

For those interested in this topic, this case is worth reviewing in full to get a sense of some of the factors courts look to when weighing a Plaintiff’s credibility in a soft tissue injury prosecution.

BCCA Finds Courts Can Consider Insurance Under Rule 37B

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 45 Comments on BCCA Finds Courts Can Consider Insurance Under Rule 37B


Very important reasons for judgement were released recently by the BC Court of Appeal addressing a key factor under Rule 37B.
By way of brief introduction Rule 37B is the current rule dealing with formal settlement offers.   (Rule 37B will be replaced with Rule 9 next month but the new rule uses language that is almost identical to Rule 37B).
The Court can take formal settlement offers into account when awarding a party costs.  One factor the Court can consider in deciding whether to award costs or increased costs under Rule 37B is “the relative financial circumstances of the parties“.
In most personal injury lawsuits Defendants are insured such that they don’t have a significant financial stake in the outcome of the trial.  BC Supreme Court judges have been conflicted in whether insurance is a relevant consideration when viewing the financial circumstances of the parties.  Today the BC Court of Appeal addressed this issue for the first time.
In today’s case (Smith v. Tedford) the Plaintiff was injured in a motor vehicle collision.  Before trial the Plaintiff made a formal settlement offer.   Several days into trial the Defendant accepted the offer.   The parties could not agree on the costs consequences.  The trial judge awarded the Plaintiff costs to the time the offer was made and double costs for the time spent at trial.  (You can click here to read my post summarizing the trial judge’s reasons).  In doing so the Judge considered the fact that the Defendant was insured with ICBC as relevant to his ‘financial circumstances“.
ICBC, on behalf of the Defendant, appealed arguing that the Judge was wrong to consider insurance.   In a welcome development the BC Court of Appeal found as follows:
While I recognize arguments over the implications of a defendant’s insurance coverage being considered in relation to an award of costs may go back and forth, like the judge I consider precluding such from consideration renders an assessment of the parties’ relative financial circumstances, at least in a case of this kind, very artificial indeed. Clearly, with ICBC having assumed the defence, the financial ability to defend was much greater than the financial ability to prosecute, and that is of no small importance to considering whether and to what extent the financial circumstances of the parties, relative to each other, bear on an award of costs where, as here, there has been an offer of settlement made ten days before a trial for the assessment of personal injury damages which was not accepted until the seventh day of the trial.

Formal Settlement Offers and Strict Compliance with Rule 37B

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 52 Comments on Formal Settlement Offers and Strict Compliance with Rule 37B


Reasons for judgement were released today considering whether strict compliance with Rule 37B is required for a Court to award a successful party Double Costs after beating a formal settlement offer at trial.
In today’s case (Eigeard v. Muench) the Plaintiff sued for personal injuries.  Prior to trial the Plaintiff made a written settlement offer to resolve the claim for $107,500.  The claim went to trial and the Plaintiff enjoyed success with a Jury awarding more than settlement offer.
The Plaintiff then asked the Court to award Double Costs under Rule 37B.  The Defendant objected arguing that the formal offer did not strictly comply with Rue 37B(1)(c)(iii) which requires formal offers to contain the following sentence:
“The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”
The Plaintiff argued that the Court still had the discretion to award double costs because “the defendant’s insurers are sophisticated and understood the content of the offer and there is no confusion.” and that “this was a legitimate attempt by the plaintiff to resolve the action.”
Madam Justice Hyslop disagreed and concluded that the Court did not have the discretion to award double costs in these circumstances.  The Court went onto summarize the applicable law as follows:
[16] In Roach, the exact words of Rule 37B(1)(c)(iii) were not contained in the offer to settle pursuant to Rule 37B. Despite this, the trial judge ordered double costs. This was one of the grounds of appeal.

[17]         The offer to settle was in the form of a letter directed to counsel. The letter set out an offer of settlement and then stated:

We reserve the right to bring this letter to the attention of the judge as a matter of costs in accordance with Rules 37 and 37A. [para. 32]

[18]         Madam Justice Prowse, writing for the Court, stated:

[35] It is not disputed that the terms of Ms. Roach’s offer substantially complied with the requirements of an offer under Rule 37B(1)(c): it was made in writing; it was delivered to Mr. Dutra (through his counsel); and it contained a sentence in terms similar to those set forth in subrule (1)(c)(iii). Nor is there any suggestion that Mr. Dutra was misled by the offer in any way, or that he believed that he could disregard the offer with impunity with respect to costs because it did not track subrule (1)(c)(iii) word-for-word. Rather, Mr. Dutra takes what appears to be the highly technical point that if an offer does not contain the exact wording set out in subrule (1)(c)(iii), it does not come within the definition of an “offer to settle” within the meaning of Rule 37B(1) and, therefore, cannot attract an award of double costs.

[19]         Madam Justice Prowse considered both a strict and relaxed interpretation of Rule 37B(1). In doing so, she reviewed the history of Rule 37 and the enactment of Rule 37B.

[20]         She concluded that the enactment of Rule 37B was a move away from strict compliance as was the situation of Rule 37. In considering the offer, Madam Justice Prowse stated at para. 52:

That said, I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding.

[21]         The court in Roach upheld the trial judge’s finding that the offer meant the requirements of Rule 37B. At para. 54, Madam Justice Prowse endorsed the trial judge’s admonition that:

…counsel would be well advised to ensure that the language of their offers complies precisely with subrule 1(c)(iii) (and, in future, Rule 9-1) to avoid any possibility of their offers being found deficient. In this case, the offer was made just days after the new rule came into effect. It may be that the same measure of flexibility will not be accorded to offers in the future which are non-compliant. That is especially so if it proves that flexibility in the application of the Rule undermines its purpose of encouraging settlement of disputes in a fair, timely and cost-efficient manner, in accordance with the object and spirit of the Rules as a whole.

Madam Justice Hyslop then dismissed the application for double costs with the following reasons:

[25]         The offer does not meet the criteria set out in Roach. Rules 37(22) and (37) address the consequence of accepting an offer. There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.

[26]         The court’s discretion under Rule 37B comes into play after the court determines whether the offer complies with Rule 37B(1)(c) and as interpreted by Roach.

[27]         I dismiss the plaintiff’s application for double costs. The defendant shall have costs of this application pursuant to scale B to be set off against the costs otherwise awarded to the plaintiff.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B so this case will likely retain its value as a precedent moving forward.

Civil Damages for Intentionally Inflicted Injuries: BCCA discusses "Self Defence" and "Provocation"

Written by admin on . Posted in Uncategorized.

Not many cases for damages as a result of intentionally inflicted injuries make their way through the BC Courts.   The main reason is that Defendants usually are not insured for damage claims for harm caused by their intentional actions.  When a Plaintiff sues a Defendant for intentionally inflicted injuries collecting on the judgement can sometimes lead to a dead-end.  (These are called ‘dry judgements’ and you can click here to access a previous article on this topic).
Although these cases rarely proceed to trial the law is straightforward, if someone causes injuries to you by intentionally applying force you can sue for your damages for the “battery“.  A few defences to a lawsuit for damages from battery can be raised and these include self defence and provocation.   Reasons for judgement were released last week by the BC Court of Appeal addressing these areas of law.
In last week’s case (Friedmann v. Thomson) the Plaintiff claimed damages as a result of an assault and battery committed by the Defendant.  The Defendant apparently struck the Plaintiff with an aluminum baseball bat.  The Plaintiff succeeded at trial with the Judge finding that “(the Defendant) came at (the Plaintiff) with the bat, and she turned away and he hit her on the back“.
The Court awarded the Plaintiff $27,276 for her injuries and losses.  The Defendant appealed arguing that the trial judge incorrectly applied the law of Self Defence and Provocation.  The BC Court of Appeal disagreed and upheld the award for damages.  In reaching this conclusion the BC High Court provided the following useful summary of the principles of self defence and provocation in Civil Lawsuits for damages from intentional assaults/battery:

[10]         The test that Mr. Friedmann had to meet at trial is set out in Mann v. Balabass, [1970] S.C.R. 74:

In an action for assault, it has been, in my view, established that it is for the plaintiff to prove that he was assaulted and that he sustained an injury thereby. The onus is upon the plaintiff to establish those facts before the jury. Then it is upon the defendant to establish the defence, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with any unreasonable force and on those issues the onus is on the defence.

[11]         The trial judge carefully considered all of the evidence. There is nothing to suggest that she did not consider the totality of the circumstances confronting Mr. Friedmann when he said he was acting in self-defence. The ultimate focus was on the point of the assault on Ms. Thomson. By that time, she had indicated that the dispute was over, she had turned to leave, and Mr. Friedmann struck her. Central to the trial judge’s finding was that the earlier events, by that time, did not give rise to a reasonable apprehension by Mr. Friedmann that he would be assaulted.

[12]         Nor, in my view, can it be said that the circumstances amounted to provocation such as to cause Mr. Friedmann to lose his power of self-control. A.M. Linden, Canadian Tort Law, 6th ed. (Vancouver: Butterworths, 1997) at 81 states:

In order to amount to provocation, the conduct of the plaintiff must have been “such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault.”  Prior incidents would have relevance only “if it were asserted that the effect of the immediate provocative acts upon the defendant’s mind was enhanced by those previous incidents being recalled to him and thereby inflaming his passion”. One cannot coolly and deliberately plan to take revenge on another and expect to rely on provocation as a mitigating factor.

[13]         Mr. Friedmann did not testify that he lost control and, even if he had, it is apparent that his testimony would not have been accepted. The trial judge did find, and was no doubt correct, that Mr. Friedmann was “in a rage”. That, however, does not necessarily equate to the loss of control amounting to provocation. Further, it is clear that, from Mr. Friedmann’s perspective, he held a degree of resentment toward the people milling about what he regarded as his private space. He did not call the police at any time. He was found by the trial judge to have hit Ms. Thomson because in his view she deserved to be hit.

[14]         In my opinion, to accede to the appellant’s arguments of provocation would give the principle a far too expansive meaning.

[15]         Notwithstanding Mr. Mackoff’s very able submissions, I would dismiss the appeal with costs to the respondent.

"Chinese Drywall" Lawsuits and BC Limitation Periods

Written by admin on . Posted in Uncategorized. 51 Comments on "Chinese Drywall" Lawsuits and BC Limitation Periods


“Chinese Drywall Lawsuits” are claims for damages based on the allegation that defective drywall, manufactured in China, was installed in homes across North America.  There are not only health complaints alleged to be associated with this drywall but also allegations that the drywall effects the integrity of the home.
To fix these problems some homeowners have resorted to gutting and replacing the drywall in their homes leading to significant repair costs.
There have been thousands of Chinese drywall lawsuits filed in the US and the first of these reached verdict earlier this month.  As reported on NPR, a US Jury just awarded a Florida couple $2.4 Million in damages to compensate them not only for the repair costs of “gutting and renovating their home” but also for the loss of enjoyment of their home and potential in reduction of the home’s resale value.
The Star reported on June 20, 2009 that an estimated 920,000 square metres of “Chinese drywall” came into Canada through Vancouver from 2001 – 2007.  While some of this was then further exported outside of BC some of this product may have been used in new construction in the lower mainland.
Thomas Martin was quoted as saying that the Chinese Drywall crisis is “the worst case of sick houses in US history“.  The question remains, is there an equally large problem of ‘sick houses‘ in Canada?
If you are concerned that your health or property have been adversely effected by defective Drywall you may be wondering about the Statute of Limitations and your ability to file a suit.   In British Columbia, the Statute of Limitations requires lawsuits based on “damages in respect of injury to person or property“to be brought within two years.  However, as with many areas of limitation law, the Limitation Act provides a common sense exception to this relatively short time period in Sections 6(3) and 6(4) which hold that in lawsuits for “personal injury” and “damage to property”
…

Time does not begin to run against a plaintiff..until the identity of the defendant is known to the plaintiff and those facts within the plaintiff’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that




(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and

(b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.


If you are a BC home-owner and are concerned that your home may be contaminated with defective drywall you should have a proper inspection carried out from a qualified engineer or home inspector.  If in fact your concerns are justified you should promptly seek legal advice to ensure you don’t jeopardize your right to be properly compensated for your financial losses.

$90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed

Written by admin on . Posted in ICBC Elbow Injury Cases, ICBC Privacy Issues, Uncategorized. 99 Comments on $90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed

(photo depicting muscle deformity from ruptured distal bicep tendon)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.
In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision.  His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”
The Plaintiff’s vehicle sustained significant damage and was written off.  Fault for the collision was admitted.
The Plaintiff sustained a variety of soft tissue injuries.  The Plaintiff also tore his bicep tendon which caused a muscle deformity.  The most contentious issue was whether the tendon was torn as a result of the collision.  Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000.  In reaching this decision Madam Justice Maisonville noted as follows:

[42]         I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.

[43]         The biceps tendons are attached to the bone, which anchors the muscle.  When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…

49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength.  Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…

[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:

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

[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..

The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.

______________________________________________________________________________________________

  • Video Surveillance

This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.

As I’ve previously posted, video surveillance can and does occur and it can be intrusive.  However, video surveillance in and of itself does not harm a person’s injury claim.  Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations.   In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:

[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.

Non-Pecuniary Damages Update – the Kelowna Road Edition

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Dental Injury Cases, ICBC Headache Cases, Uncategorized. 51 Comments on Non-Pecuniary Damages Update – the Kelowna Road Edition


I’m writing today’s non-pecuniary damages case update in Kelowna, BC where I’m finishing up some work on a handful of ICBC claims.
Reasons for judgement were released earlier this week by the BC Supreme Court awarding non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for headaches and chronic pain following soft tissue and TMJ injuries.
In this week’s case (Ho v. Dosanjh), the Plaintiff was injured in a 2006 BC motor vehicle collision.   It was a rear-end crash and the Plaintiff’s vehicle sustained over $7,000 in damage.   The Plaintiff’s injuries continued to cause him problems by the time of trial (nearly 4 years after the collision).  Mr. Justice Silverman awarded the Plaintiff $75,000 for his non-pecuniary loss and in reaching this figure the Court noted the following about the extent and severity of the Plaintiff’s injuries:

[21]         As a result of the subject MVA, the plaintiff suffered pain in his neck, upper back, shoulder, jaw, numbness down the left arm, headaches, and insomnia.  He was on a variety of medications for a period of time and was unable to work.

[22]         The most serious and ongoing consequences of the MVA are the TMJ and the headaches, which leave him in constant pain.

[23]         Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw, teeth, and  related areas, and that he suffers from headaches as a result of the MVA.

[24]         He testified that these areas of concern had not improved significantly in the four years since the MVA and further recovery was unlikely; that the plaintiff will suffer long-term symptoms that impact on all aspects of his functioning; and that he should avoid any activities that involve jumping or jarring.  Dr. Mehta recommended conservative care, including continuation of various treatments which were already ongoing, such as physiotherapy and massage.

[25]         Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s capacity for recreational pursuits has been compromised and that this will continue for the foreseeable future.  He testified that, given the amount of time that has passed since the MVA, there is unlikely to be any further improvement.

[26]         Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ pain and that, in his opinion, “they will remain a long term issue.”  He noted that the plaintiff had a pre-existing degenerative condition, which made him more susceptible to injury from the MVA.

[27]         Dr. Gilbart provided an independent medical report and was called as a witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s pre-existing degenerative condition in his neck.  He opined that the “prognosis for significant further improvement in his symptoms at this point is guarded.”  He noted that the plaintiff was asymptomatic prior to the MVA and was functioning at a very high level in all aspects of his life.  Dr. Gilbart also noted that, despite the post-MVA pain complained of by the plaintiff, he still appeared to be functioning at a very high level.  Finally, he opined that, given the pre-existing condition of the plaintiff as well as his prior history, he likely would have had flare-ups in the future even if the MVA had not occurred.

[28]          With respect to the jaw pain and headaches, Dr. Gilbart deferred to the expertise of Dr. Mehta.

[29]         Presently, the plaintiff has not returned to most of his pre-MVA athletic activities.  He no longer is involved in volleyball, softball, aggressive hiking, or skiing.  He does still rollerblade, although not as aggressively as before, and he has recently begun to swim with the encouragement of his girlfriend, who is a physiotherapist’s assistant.

[30]         Various friends testified that the plaintiff’s personality has changed.  He is moody, irritable, withdrawn, quiet, rarely socializes, and not as pleasant to spend time with as he used to be.  It was clear to me, when watching the plaintiff in the gallery of the courtroom that he was distressed when he heard this testimony.  He subsequently testified that he had not actually heard these witnesses say this before…

76]         I am satisfied that the plaintiff has suffered neck, back, jaw, and shoulder pain, and that he continues to suffer on a daily basis, particularly from TMJ and headaches.

[77]         I am satisfied that it has affected his recreational and athletic activities, which were an important part of his life.

[78]         I am satisfied that there is unlikely to be much further improvement.

[79]         I am also satisfied that, while he is suffering pain, he is nevertheless able to function in a reasonably normal way.  He certainly appeared to be reasonably comfortable when giving evidence.  He also continued to work full-time after a period of months during which he was unable to work, although I accept that work is much less physically comfortable for him than it used to be.

[80]         While I accept the evidence that he might have suffered another flare-up even in the absence of the MVA, I am satisfied that the MVA was, and is, the primary cause of his current difficulties.

[81]         With respect to ongoing treatments for the rest of his life, I am satisfied that, while these might provide him with some periodic temporary relief, they are not likely to result in any improvement.  Consequently, what the plaintiff might perceive as the “need” for such ongoing treatments, will be reflected as an aspect of the non-pecuniary award.

[82]         In all the circumstances, I award $75,000 for non-pecuniary damages.

ICBC Ordered to Pay "Double Costs" In Breach of Insurance Case; Timing and Finances of Parties Considered

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 60 Comments on ICBC Ordered to Pay "Double Costs" In Breach of Insurance Case; Timing and Finances of Parties Considered

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering ICBC to pay ‘double costs‘ after losing a breach of insurance claim.
In today’s case (Barsaloux v. ICBC) the Plaintiff was the owner of a vehicle that was stolen and subsequently recovered.  It was damaged beyond repair.  The Plaintiff had insurance with ICBC and applied for coverage.  ICBC refused to pay stating that the Plaintiff was in breach of his policy of insurance for making a false declaration about the identity of the vehicle’s principal operator.
The Plaintiff successfully sued ICBC and was awarded $13,850 in damages.   Prior to trial, the Plaintiff made a formal settlement offer of $13,700.  The Plaintiff applied to Court to be awarded double costs under Rule 37B.
ICBC objected arguing that the offer was made only two days before trial and therefore there was no reasonable opportunity to consider it.  Mr. Justice Smith disagreed and awarded the Plaintiff double costs.  In doing so the Court made the following useful comments about two notable issues under Rule 37B, timing of settlement offers and the financial disparity between the parties:

[17] I stress that ICBC was directly a party to this action. That distinguishes this case from Bailey v. Jang, 2008 BCSC 1372, where Hinkson J. declined to consider the relative financial positions of the plaintiff and ICBC where ICBC’s involvement was in its capacity as insurer for the named defendant.

[18]         The unequal position of the parties is not determinative because, as counsel for ICBC points out, the same situation will exist in any case where there is a coverage dispute between the corporation and a policy holder. However, I am also of the view that, in this case, ICBC used its position of strength to maintain what it should have known was an untenable, or at least an insufficiently considered, position…

[22]         In the circumstances, ICBC should have realized the weakness of its position well before trial. The offer to settle was the only means the plaintiff had to exert additional, although modest, pressure and to provide ICBC with a further opportunity to re-assess and reconsider its position in light of the evidence that existed. I find that it was an offer that ought reasonably to have been accepted.

[23]         That conclusion is not altered by the fact that the revised offer to settle was delivered only two days before trial. ICBC relies on Bailey, where the court said seven days was a reasonable period of time to consider an offer and ordered double costs for the period beginning seven days after delivery of the offer.

[24]         I do not read Bailey as stating anything more than what was a reasonable period for consideration of an offer on the facts of that case. Rule 37B sets no time limit for delivery of a settlement offer. In that regard, it differs from the former Rule 37, where an offer delivered less than seven days before trial attracted different consequences than one delivered earlier. In fact, Rule 37B(6)(a) specifically refers to an offer that ought reasonably have been accepted “either on the date that the offer to settle was delivered or on any later date” (emphasis added).

[25]         In the circumstances of this case, including the issues involved, the delivery date of the offer gave ICBC sufficient time to consider its position before trial. As said above, ICBC should have known well before the offer was delivered that it could not prove an essential part of what it was alleging. I find the plaintiff is therefore entitled to double costs for the trial of this action.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which will likely have cases such as this one retain their value as precedents moving forward.

Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk

Written by admin on . Posted in ICBC Liability (fault) Cases. 56 Comments on Bus Driver Found 5056 Responsible For Collision With Cyclist Riding in Crosswalk


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC.  He was travelling on the left side of the street.    At the same time the Defendant was operating a school bus and driving in the opposite direction of travel.  As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn.  The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk.  A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault.  The Court found that both parties were equally at fault for the collision.  In reaching this decision Mr. Justice Smith reasoned as follows:

[18]         The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27]      The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

[19]         The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20]         Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21]         Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22]         However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23]         In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage:  Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]         The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25]         Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]         In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.