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BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized. 62 Comments on BC Court of Appeal Discusses Pain and Suffering Damages for Fibromyalgia; Overturns Trial Award

Reasons for judgement were released today by the BC Court of Appeal discussing an appropriate amount for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for accident related Fibromyalgia.
In today’s case (Poirer v. Aubrey) the Plaintiff was injured in a 2006 rear-end car crash in BC.  She suffered injuries which resulted in chronic pain.  There was evidence that some of the effects of her injuries were likely permanent.  At trial the Plaintiff was awarded just over $220,000 in total damages for her injuries and loss (click here to read my summary of the trial judgement).
The Plaintiff appealed arguing that the damage award was low and the trial judge made an error in finding that there was a ‘real and substantial possibility…that (the Plaintiff’s) pain and discomfort will be relieved and her functioning improved“.  The BC High Court agreed that the evidence did not support such a finding and that the trial award was low.  The Court substituted an award of $528,503 which included an increase in the non-pecuniary damages award of $60,000 to $100,000.
In assessing the Plaintiff’s non-pecuniary loss for chronic pain from soft tissue injuries at $100,000 the BC Court of Appeal noted as follows:

[25]         I consider the evidence establishes that, as the judge said, there is a “real and substantial possibility” Ms. Poirier’s injury will prove to be permanent.  There is no cure.  There is treatment for her condition, but the prospect of her pain being relieved to a significant degree is indeed guarded.  She is unlikely to ever be pain free and can at best hope that, with continued treatment, she may in time achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment.

[26]         Ms. Poirier cites three awards in particular that she says reflect what plaintiffs who have suffered somewhat comparable non-pecuniary losses to hers have been awarded: Hooper v. Nair, 2009 BCSC 862; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; and Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203.  The respondents cite Heartt v. Royal, 2000 BCSC 1122; Mowat v. Orza, 2003 BCSC 373; and Esau v. Myles, 2010 BCSC 43.  These awards reflect a broad range: those cited by the respondents are $50,000 to $70,000; those cited by Ms. Poirier are $85,000 to $125,000.  I consider Ms. Poirier’s loss to be more consistent with the losses in the awards she cites.  Of particular significance is the permanent nature of her injury that causes her ongoing debilitating pain, the effect it has had and will continue to have on the enjoyment of her life, and the uncertainty there is that her condition will in time improve even to the point of permitting her to return to work part time.

[27]         I would set aside the judge’s award of $60,000 for non-pecuniary loss and substitute an award of $100,000.

Can You Successfully Sue For Injuries in a "No Impact" Collision?

Written by admin on . Posted in ICBC Dental Injury Cases, ICBC Hand Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 66 Comments on Can You Successfully Sue For Injuries in a "No Impact" Collision?

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.
The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.
Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:
[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…
[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…
[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.

More on Circumstantial Evidence and Your ICBC Injury Claim

Written by admin on . Posted in Uncategorized. 53 Comments on More on Circumstantial Evidence and Your ICBC Injury Claim


Further to my previous post on this topic, historic reasons for judgement were released today on the BC Supreme Court website demonstrating that circumstantial evidence can be enough for a Plaintiff to win their ICBC injury claim.
In today’s case (Tweedie v. ICBC) the Plaintiff was injured while out for a morning jog in 1999.  There were no witnesses to the incident that injured the Plaintiff.  The result of the Plaintiff’s trauma was such that she could not remember how she was injured.   In her dazed state of mind she initially thought she tripped while jogging however, on learning about how serious her injuries were (these included several broken ribs, multiple fractured bones in her foot and a fractured fibula) the Plaintiff assumed she must have been struck by a vehicle.
The Plaintiff sued ICBC directly for compensation under s. 24 of the Insurance (Vehicle) Act (the section dealing with unidentified motorist claims).  ICBC denied liability arguing there was no proof that a motor vehicle collision caused the injuries and that even if the injuries were caused by a vehicle there was no proof that the driver of the vehicle was negligent.  Mr. Justice Wilson disagreed and found that ICBC is liable for the Plaintiff’s injuries as a result of the collision.  In reaching this verdict the Court relied exclusively on circumstantial evidence.  Mr. Justice Wilson provide the following useful summary of the law regarding finding fault in an injury claim based wholly on circumstantial evidence:

[3]           The principles are well-established for assessing liability where the evidence is circumstantial, but it is still useful to refer to them.  In the decision of the Supreme Court of Canada in Montreal Tramways Company v. Leveille, [1933] S.C.R. 456, the Court considered the claim of injury, a deformity to an unborn child alleged to have been brought about as a result of the child’s mother falling while on the tramway.  At p. 466, Mr. Justice Lamont considered the issue of whether there was evidence on which the jury could reasonably find the existence of a causal relationship between the accident to the mother and the deformity of the child’s feet, and said this:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn inRichard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact.  The applicant must prove his case.  This does not mean that he must demonstrate his case.  If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon.  Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

There was undoubtedly evidence to go to the jury that the mother’s accident was caused by the fault of the Company, and the jury’s finding on that point cannot be disturbed.  That such fault caused the deformity of the child cannot, from the nature of things, be established by direct evidence.  It may, however, be established by a presumption or inference drawn from facts proved to the satisfaction of the jury.  These facts must be consistent one with the other and must furnish data from which the presumption can be reasonably drawn.  It is not sufficient that the evidence affords material for a conjecture that the child’s deformity may have been due to the consequences

of the mother’s accident.  It must go further and be sufficient to justify a reasonable man in concluding, not as a mere guess or conjecture, but as a deduction from the evidence, that there is a reasonable probability that the deformity was due to such accident.

At p. 469, he referred to the decision of the House of Lords in Jones v. G.W. Rly. Co. (1930), 47 T.L.R. 39, in which the Court had to consider whether there was evidence on which a jury could properly find negligence on the part of the defendant’s servants which caused or contributed to the death of a husband of the first plaintiff.  He quoted from the decision of Lord MacMillan:

The dividing line between conjecture and inference is often a very difficult one to draw.  A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess.  An inference in the legal sense, on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof.  The attribution of an occurrence to a cause is, I take it, always a matter of inference.  The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability.  Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.

And then, on p. 474, after considering the difference in the jurisprudence in Quebec under the Civil Code and in the rest of Canada under the common law, he said:

… under either the French or English jurisprudence, the presumptions or inferences to be receivable as proof must be a deduction from established facts which produce a reasonable conviction in the mind that the allegation of which proof is required is probably true.  That conviction may vary in degree between “practical certainty” and “reasonable probability”….

The question, however, is whether he instructed the jury sufficiently?  In a case such as this it is, in my opinion, essential that the judge should instruct the jury that the presumption which they are entitled to admit as proof must not be a mere guess on their part, but must be a reasonable deduction from such facts as they shall find to be established by the evidence.

That is the standard which must be met here, where I am the trier of fact.

[4]           In a decision of the British Columbia Court of Appeal, Plett v. Insurance Corporation of British Columbia (1987), 12 B.C.L.R. (2d) 336, under the heading “Circumstantial evidence”, at p. 341, Mr. Justice Wallace said this:

In cases such as this, in which the evidence is circumstantial, inferences of negligence cannot be drawn unless there are positive proven facts from which such inferences can be made.

In Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152, [1939] All E.R. 722 (H.L.) a case concerning an industrial accident to a workman, Lord Wright stated at pp. 169-170 what is, in my respectful opinion, the correct approach to a case which turns solely on circumstantial evidence:

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed.  The Court therefore is left to inference or circumstantial evidence.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

In the present case there are, I think, certain known facts which enable some inferences to be drawn.  Beyond that point the method of inference stops and what is suggested is conjecture.  It is not necessary to recapitulate the facts which have been fully stated by my noble and learned friend, Lord Atkin.  I shall be content to state what I regard as proved by the method of inference, and reject what appears to be made to be a matter merely of conjecture.

Non-Pecuniary Damages for Thoracic Outlet Syndrome Assessed at $85,000

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a left sided Thoracic Outlet Syndrome (TOS) which arose after a series of accidents.
In today’s case (Lee v. MacLean) the Plaintiff was involved in two 2003 motor vehicle accidents.  The Defendants were found liable for the collisions focusing the trial on the cause of the Plaintiff’s injuries and their value.
Determining the cause of the Plaintiff’s injuries was no easy task as the Plaintiff was injured in previous motor vehicle collisions and continued to suffer pain from those events.   By the time of his 2003 accidents the Plaintiff still had pain in his neck, right shoulder and lower back as a result of his previous accidents.  The 2003 accidents aggravated these injuries and caused new symptoms.  Specifically the Court found that the 2003 collisions “triggered the onset of the thoracic outlet symptoms on (the Plaintiff’s) left side“.
The Court heard expert evidence from Dr. Peter Fry, a vascular surgeon with expertise in thoracic outlet syndrome.  He provided the following evidence with respect to the cause and severity of the Plaintiff’s left sided TOS:

I think significantly at the present time he shows evidence of more serious compression of the thoracic outlet given that there is clinical evidence that the venous drainage of the arm on the left is impaired compared to the right side.  This is an indication of fairly severe compression in this area, basically involving not only the vein but the artery where you can develop a bruit or turbulence during provocative testing for thoracic outlet syndrome and the reproduction of neurological symptoms that appear to involve both upper and lower plexus.

This being the case, I think it is highly that at some point in time Mr. Lee is going to require definitive surgery for thoracic outlet syndrome on the left.

I would opine that the accident of October 2003 was most likely responsible for provoking or exacerbating symptoms on the left side in a setting where he clearly had previous compression of the thoracic outlet and was therefore somewhat vulnerable to this injury.

Mr. Justice Gaul assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000.  The court then reduced this award by 25% to take into account the Plaintiff’s pre-existing injuries.  Mr. Justice Gaul provided the following reasons:

[118]     Applying the principles enunciated in Filsinger, I am satisfied Mr. Lee is both a “crumbling skull” and “thin skull” plaintiff.  The determination of which depends upon the precise injury.

[119]     The neck, right shoulder and lower back pains Mr. Lee complained of following the 2003 Accidents were quite similar to those he complained of after the 1990s Accidents.  I am satisfied that these symptoms would have continued to manifest themselves even if Mr. Lee had not been involved in the 2003 motor vehicle accidents.

[120]     With respect to the left side of Mr. Lee’s body, the issue is more difficult.  I accept the evidence of Dr. Fry that in 1998 Mr. Lee exhibited signs of thoracic outlet syndrome on the left side of his body, even though Mr. Lee was asymptomatic at the time.  I am persuaded by the evidence of Dr. Fry and Dr. Shuckett that the nature of Accident #1 and Accident #2 were such that they triggered the onset of the thoracic outlet syndrome symptoms on Mr. Lee’s left side and are therefore attributable to those accidents.

[121]     I also find that the concentration problems, headaches and associated vision problems that arose after the 2003 Accidents can at least be partially attributed to those accidents…

[123]     Given the pre-existing condition of Mr. Lee and the fact that the symptoms on the right side of his body were likely to have continued, notwithstanding the 2003 Accidents, I find that it is appropriate to make a 25% reduction in the non-pecuniary damages as well as the award for loss of earning capacity…

[135]     I found Mr. Lee to be a credible witness when he described the timing, nature and extent of his injuries.  In doing so, I accept that he had pre-existing pains prior to the 2003 Accidents, some of which were identical to those which developed after the 1990s Accidents.

[136]     Mr. Lee is entitled to be compensated for his injuries.  I do not find those injuries to have been as trivial or transient as suggested by the defendants.  On the whole I favour Mr. Lee’s description of the injuries and find that an appropriate award for non-pecuniary damages to be $85,000.  There will, however, be a 25% contingency discount to this amount on account of Mr. Lee’s pre-existing physical ailments.

[137]     As a result, the award for non-pecuniary damages is $63,750.

You can click here to read my archived posts of other recent BC Injury Cases awarding damages for accident caused Thoracic Outlet Syndrome.

Getting the Insurance Company's Documents; Litigation Privilege and the Trend of Increased Disclsoure

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


As I’ve previously written, litigation privilege is a principle which allows parties not to share relevant documents with the other side in a lawsuit in limited circumstances.  Despite this principle, the BC Courts seem to be favouring the trend of disclosure making it more difficult for parties not to disclose documents after lawsuits get underway.  Reasons for judgement were released last week demonstrating this trend.
In last week’s case (Beer v. Nickerson) the Plaintiff was injured in 2008 as a result of a slip and fall incident at a Pharmasave in Victoria, BC.  The Plaintiff alleged the fall occurred as a result of the Defendant’s “negligent operation of her scooter in the store“.
The Defendant contacted her insurance company after the incident.  The insurance company conducted an investigation and in the process of this obtained a statement from the Defendant, a drawing of the store prepared by the Defendants daughter, and photographs of the location of the incident.
After the lawsuit started the Defendant’s lawyer refused to provide these documents arguing they were protected by “litigation privilege“.   Master Bouck of the BC Supreme Court disagreed and ordered that these documents be produced.  In reaching this conclusion the Court reasoned that the documents were not privileged because a lawsuit was not a ‘reasonable prospect‘ when these documents were created and further that they were not created for the ‘dominant purpose‘ of use in a lawsuit.  Before reaching her verdict Master Bouck provided the following useful summary of the law:

[17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, supra. Those principles are as follows:

1.  The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.  The test for considering whether litigation privilege is established is two-fold:

(a)  Was litigation a reasonable prospect at the time the document in dispute was created?

(b)  If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)

3.  Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.  However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

6.  It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

[18] To these principles I would add that the dominant purpose test is consistent with “the more contemporary trend favouring increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

This case is helpful in permitting Plaintiffs to obtain more fulsome disclosure early in a lawsuit.  Our Courts have made it clear that if documents are gathered by an insurance company for the purpose of investigating a claim (as opposed to defending a potential lawsuit) then these documents will have to be disclosed under the BC Supreme Court Rules.

$70,000 Non-Pecuniary Damages Assessment for Patellofemoral Knee Pain

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


Reasons for judgement were released this week by the BC Supreme Court awarding $126,000 in total damages as a result of injuries and loss caused by a 2006 BC car crash,
In this week’s case (Poulton v. Inderbosch) the Plaintiff was injured when the Defendant ‘went through a red light‘ and T-boned the Plaintiff’s vehicle on her passenger side.  Fault was admitted by the Defendant focussing the trial on the value of the Plaintiff’s claim.
The Court heard competing evidence about whether the Plaintiff suffered a knee injury as a result of the crash.  Mr. Justice Sewell decided that the Plaintiff’s knee in fact was injured.  In awarding $70,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for the Plaintiff’s injuries the Court stated as follows:
[15] The plaintiff filed a medical/legal report of Dr. McKenzie, an orthopaedic surgeon.  He examined Ms. Poulton on September 14, 2009.  Dr. McKenzie is of the opinion that Ms. Poulton has ongoing left knee pain which is likely patellofemoral knee pain as well as ongoing pain in her neck and upper back.  In his opinion her symptoms are caused by the accident including a direct blow to her knee…
[21] I conclude that Ms. Poulton did injure her left knee in the motor vehicle accident on January 27, 2006…
[26] In this case, Ms. Poulton has suffered an injury which continues to trouble her more than four years after the accident.  Given the duration of Ms. Poulton’s symptoms and the inability of any of the treating physicians to isolate an organic cause for those symptoms, I agree with Dr. Mackenzie’s opinion that the prognosis for the resolution of Ms. Poulton’s pain is poor.  There is evidence that Ms. Poulton’s headaches have significantly improved since the date of the accident and there is therefore some reason to conclude that those headaches will continue to improve.  I am also mindful of the evidence that Ms. Poulton seems to be able to function with the assistance of medications.  On the other hand, Ms. Poulton has testified that the injuries have had a significant impact on the quality of her life, particularly with respect to her ability to pursue such recreational activities as hiking and aqua size. ..
[30] I conclude that an award of $70,000 is appropriate in this case to compensate Ms. Poulton for her pain, suffering and loss of amenities of life.  In assessing these damages I have taken into account that Ms. Poulton will likely seek symptomatic relief from medication for the reasons set out in paras. 50 and 51 of these reasons.
You can click here to read my archived posts of other recent BC Court Cases awarding damages for knee injuries.

ICBC Asks Court of Appeal to Address "Costs" Awards In Cases Worth Under $25,000

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 68 Comments on ICBC Asks Court of Appeal to Address "Costs" Awards In Cases Worth Under $25,000

I’ve written many times about the fact that the BC Supreme Court Rules give trial judges a discretion to award a successful plaintiff Court Costs even if the amount awarded falls in the Small Claims Court’s Jurisdiction.
Two recent cases were released today by the BC Court of Appeal demonstrating that ICBC is interested in having the circumstances in which these awards are made limited.
In the first case (Morales v. Neilson) the Plaintiff was injured in a BC Car Crash and sued for damages.  At trial he was awarded just over $12,000.  The trial judge went on to award the Plaintiff costs despite the fact that the judgement was for an amount within the small claims courts financial jurisdiction.  ICBC asked permission to appeal but this was refused with the BC High Court holding that the Judge appropriately applied the test for discretionary costs.
The second case, however, had the BC Court of Appeal more interested.  In this case (Gradek v. DaimlerChyrster Financial Services Canada Inc.) the trial judge awarded a Plaintiff under $10,000 in total compensation as a result of a BC collision.  The Court went on to award the Plaintiff costs.  (You can click here to read my summary of the trial decision regarding costs).  ICBC asked the Court of Appeal to intervene arguing that the trial judge was wrong in considering the ‘procedural advantages‘ available in the BCSC as factors which give a plaintiff ‘sufficient reason‘ to sue in that Court when the case is worth clearly less than $25,000.  The Court of Appeal agreed to hear the case noting that this is an important issue for ICBC. Specifically the BC High Court held as follows:

[7] The issue on which the appeal is sought to be brought is a pure issue of law. It is one of statutory construction, the question being the meaning of the words “sufficient reason” in the context of Rule 57(10). The language of Rule 57(10) does not, on its face, limit “sufficient reason” to a consideration of the anticipated quantum of damages.  Even so, while I would not describe the appellant’s case as a very strong one, it does seem to me that it is arguable that “sufficient reason” contemplates jurisdictional questions (particularly the quantum of damages), and not procedural advantages.  In my view, there is sufficient merit in the appeal to warrant a hearing before a division of the Court.

[8] The issue of how the Supreme Court is to determine whether a matter is brought in that court for “sufficient reason” is a matter of general importance in litigation, particularly given that the monetary limit for Small Claims Court has expanded to $25,000. There will now be a sizable number of cases that fall below the Small Claims limit.

[9] The case is of significance to the defendant in this matter; from a practical standpoint, it is an institutional defendant involved in many cases. The case is, however, of limited significance to the plaintiff.  While the costs award is a significant proportion of the entire award received by the plaintiff, the costs of defending the appeal may significantly exceed the amount in issue.

[10] This concern is mitigated, however, by the fact that the appellant is prepared to abide by an order that it will pay the respondent’s costs on Scale 1 in any event of the appeal (it is acknowledged that the respondent would be free to argue before the Court that a higher level indemnity should be awarded).

[11] In the circumstances, I am satisfied that leave ought to be grant and that a division of the Court should hear this matter. Leave is granted. The appellant will be responsible for the respondent’s costs in any event of the appeal.

I will be sure to write about the BC Court of Appeals decision in this case once it is released.

More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, Uncategorized. 55 Comments on More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

Jury Finds Driver Faultless for Going Through Stop Sign in Icy Conditions

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


I have written previously about the ‘invevitable accident‘ defence more accurately referred to as a ‘no-negligence‘ defence.  Today the BC Court of Appeal released reasons for judgement considering this area of the law in the context of a personal injury lawsuit that was dismissed by a BC Jury.
In today’s case (Bhangal v. Sloan) the Plaintiff was injured when his vehicle was struck by a pick-up truck driven by the Defendant.  The Defendant went through a stop sign without stopping.    His explanation was that he was not careless but rather could not stop due to the slope of the hill he was travelling down and ice on the roadway.  The Jury accepted this evidence and dismissed the Plaintiff’s claim finding that the Defendant was not careless in operating his truck.
The Plaintiff appealed arguing that the Jury was wrong and that their finding was one “no properly instructed jury could reach“.  The BC Court of Appeal disagreed and upheld the Jury dismissal of the personal injury lawsuit.  In reaching this conclusion the BC High Court reasoned as follows:

In Fontaine, the principle of res ipsa loquitur was put to one side as being no longer applicable in Canadian negligence law. It is no longer to be presumed that a car running off the road (or its loss of control) is attributable to the negligence of its driver. Rather, a case in negligence must be proven on both the direct and circumstantial evidence adduced, with effect being given to such inferences as the evidence properly supports.

[10] In Nason v. Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”

[11] Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.

[12] I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

[13] Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

[14] I would accordingly dismiss the appeal.

Plaintiff Awarded Double Costs for Beating Pre Trial Formal Settlement Offer; Relevance of ICBC Insurance Considered

Written by admin on . Posted in BC Supreme Court Costs Cases, Settlement Law, Uncategorized.


In my continued efforts to track the judicial development of Rule 37B, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs for the trial of her ICBC claim.  The contentious issue of the existence of Insurance as a potentially relevant factor was also considered.
In today’s case (Pham-Fraser v. Smith) the Plaintiff was injured in a BC motor vehicle collision.  Before trial the Defendant (insured with ICBC) offered to settle under Rule 37B for $115,000.  The Plaintiff responded with a formal settlement offer of $149,000.  Neither party accepted the respective offers and proceeded to trial where the Court awarded just over $400,000 in total damages (click here to read my previous post discussing the trial judgement).
The Plaintiff, having comfortably beat her formal offer, asked the Court to award double costs under Rule 37B.  In granting the motion Mr. Justice Greyell held as follows:

[24] The second factor referred to in Rule 37B(6) also operates in the plaintiff’s favour.  There is a wide difference between the offer to settle and the final judgment.  The judgment is almost three times the amount offered.  The plaintiff’s offer was made because she wished to avoid court and having to give her evidence.  Some of her evidence was of a private nature relating to matters she did not wish to talk about in the public forum of a court of law (that is, how the accident affected her work and home life, her marital relationship with her husband after the accident, and the fact she suffered from incontinence).

[25] It is not necessary to consider factors set out in Rule 37B(6)(c) and (d).  I do not accept the plaintiff’s submission I ought to consider that the defendants, being represented by ICBC, are in a “sophisticated” position in terms of providing settlement instructions and that this is a factor to be taken into account and operate in the plaintiff’s favour in exercising my discretion under the rule.   The plaintiff’s argument seems to me to simply be another way of putting a “deep pockets” argument forward: an argument the courts have thus far rejected as being a factor to be considered in determining whether to award costs under Rule 37B.

[26] After considering the factors which I do consider relevant under Rule 37B, I conclude the plaintiff is entitled to an award of double costs.

As previously discussed, the BC Supreme Court is inconsistent on whether a Defendant being insured is a relevant factor under Rule 37B and clarity from the Court of Appeal would be welcome.  While more cases than not have held that insurance is not a relevant consideration it is not yet clear that this is correct.  If the law was settled it would assist lawyers in advising their clients of the potential risks and benefits of trial.

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 which should help cases such as this one retain their value as precedents.