BC INJURY LAW – Page 261 – The MacIsaac Group of Law Firms

The Implied Undertaking of Confidentiality and ICBC Claims

Written by admin on November 14, 2008. Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on The Implied Undertaking of Confidentiality and ICBC Claims

Interesting reasons for judgement were released today dealing with the issue of whether a plaintiff in an ICBC tort claim has to produce materials from previous legal proceedings.
In this case the Plaintiff alleged injury as a result of a 2005 BC motor vehicle accident. The Plaintiff was involved in previous legal proceedings. The defence lawyer asked the court for production of 3 documents which were contested, specifically

(a) a copy of the medical report of Dr. Bloch requested by Ms. (the Plaintiff;s) counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);

(b) a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;

(c) a copy of the transcript of the plaintiff’s examination for discovery in the Great West proceeding.

The court first dealt with the issue of whether the current defendant was entitled to the plaintiff’s examination for discovery transcript from a previous legal claim. The court reproduced paragraphs 51 and 53 of the leading Supreme Court of Canada Decision dealing with the ‘implied undertaking’ of confidentiality of examination for discovery transcripts, specifically:

51. As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant’s privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d’Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.

53. I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant’s transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.

The court in this case refused the defendants motion to produce the plaintiff’s previous discovery transcript and the plaintiff’s previously obtained medico-legal report holding that

On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A. I am also of the view that the same must be said of the medical report of Dr. Bloch. That report was a document created for the previous proceeding. There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial. In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege. The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.

The court however, did order that the transcript of the plaintiff’s previous submissions in a cmall claims court action be produced holding that:

The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter. That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence. In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005. In my view, any undertaking regarding those submissions was spent by their use in that proceeding.

Injuries to Passengers of Drunk Drivers in ICBC Claims

Written by admin on November 14, 2008. Posted in ICBC Hand Injury Cases.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a serious hand injury sustained in a 2006 single vehicle accident.
The Plaintiff was a passenger. The Defendant driver lost control of the vehicle and it flipped over onto its roof. The Plaintiff was injured in this collision. ICBC admitted fault on behalf of the driver, the main issue at trial was whether the Plaintiff was partially at fault for her own injuries for getting into a vehicle when she knew or ought to have known that the driver was impaired.
In finding that the Plaintiff was partly to blame for her own injuries the court said as follows:

[17] In this case, the evidence establishes that the plaintiff must indeed assume some of the responsibility for her injuries. The plaintiff knew the defendant was drunk before she got into the truck. Although she was so drunk she was staggering and she does not recall the drive to the parking lot, she does recall the defendant’s behaviour and testified that she knew he was drunk when they left the bar. She needed a ride home and either asked him for one or voluntarily accepted one from him.

[18] However, fault must be apportioned on the basis of the nature and extent of the departure from the respective standards of care: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 at para. 24. On that basis, much more of the fault belongs to the defendant. He was clearly negligent. Not only was he impaired, but he chose to spin doughnuts, causing the truck to flip over. He had apparently driven without incident to the parking lot, and it was his decision to drive, while impaired, in such a dangerous fashion in the lot itself that led to the accident. While his behaviour was fuelled by alcohol, and the plaintiff should have foreseen that a drunk driver could put her in a position of danger, she was exposed to a greater degree of danger by his reckless antics. His departure from the applicable standard of care was much greater than the plaintiff’s. I find the appropriate percentage of contributory negligence in all these circumstances to be 25%.

The Plaintiff sustained a serious hand injury. In valuing her pain and suffering at $50,000 the court found as follows:

[20] The plaintiff, who is right-handed, suffered serious injuries to her left hand. All the skin was removed from the back of her hand, and the tendons were exposed. Her middle finger was fractured.

[21] She has had seven surgeries, during which the tendons have been repaired, the middle joint of the third finger has been fused, and a graft of skin from the inside of her thigh has been applied to the back of her hand. This skin graft was quite thick and has been reduced in stages.

[22] The plaintiff does not have pain or numbness in her hand, but has stiffness in the metacarpal phalangeal joints – that is, the joints that connect the finger to the hand itself – on her index, middle and ring fingers, with pronounced stiffness in the middle joint of her index finger. The fusing of the middle joint of her third finger means it will not bend. She has signs of early osteoarthritis in the middle and ring fingers. Her micro-surgeon/hand specialist, Dr. Hill, is of the opinion that she has the potential to develop arthritis in all the joints of her left hand. The third party’s specialist, Dr. Gropper, does not share that latter view, but apart from that his opinions did not differ from Dr. Hill’s. Arthritis could raise the possibility of joint replacement in the future, but the doctors did little more than mention this without elaboration. …..

[30] In summary, as a result of the accident, the plaintiff was required to have seven surgeries on her left hand. She is left with a non-dominant hand that is obviously different in appearance and function, regardless of the remaining surgery that will give some further amelioration in those respects. She is left with stiffness in three fingers, one of them fused, but does not suffer pain or numbness. She keeps her hand covered to avoid embarrassment. She has scarring, reduced grip strength, and reduced tolerance for repetitive activities involving her left hand.

[31] Based on the evidence before the court, the effect on her daily life and activities is not extensive. She finds some household chores difficult, and her left hand becomes tired when driving. She does face the prospect of advancing arthritis, particularly in the two presently affected joints.

[32] Considering all of the evidence, I am of the view that the amount proposed by the third party is reasonable. I award $50,000 for non-pecuniary damages.

This case serves as a stark reminder that if you know or ought to know that the driver of your vehicle is impaired by alcohol you can be found partially at fault for your own injuries if the driver is involved in a crash. Such a finding of contributory negligence will affect the value of your ICBC claim.

$35,000 Pain and Suffering for Moderately Severe Whiplash

Written by admin on November 13, 2008. Posted in Civil Procedure, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court awarding close to $45,000 in total damages as a result of a 2006 Surrey, BC car accident.
This case involved a rear-end crash and liability was admitted. The trial focused solely on damages.
The Court made the following findings of fact:

[50] I am satisfied that (the Plaintiff) suffered a moderately severe whiplash injury as a result of the accident in January 2006 that involved her upper, mid and lower back, neck, and shoulders. In addition, I am satisfied (the Plaintiff) suffered an injury to the web spaces between her thumbs and forefingers on both hands when they struck the steering wheel upon impact. As a consequence of these injuries, I accept that (the Plaintiff) suffered muscle stress headaches in the back of her neck that were distinct from her migraine headaches. Further, I accept that she had difficulty sleeping because of the pain from her injuries and, at least initially, because of the emotional distress caused by the serious nature of the accident.

[51] There is also cogent evidence that as a result of these injuries (the Plaintiff) was incapable to performing her crossing guard job and her noon hour supervision work from January 9 to March 10, 2006. Further, it is apparent that the pain (the Plaintiff) suffered as a result of these injuries was significant enough to warrant frequent and regular appointments with Dr. Rondeau up until October 2006 and twice weekly physiotherapy treatments from February 2006 to December 2006.

[52] After December 2006, however, there is no evidence that (the Plaintiff) sought medical treatment for her injuries. While (the Plaintiff) continued to do the exercises and stretches she was taught by her physiotherapist once or twice per week, she did not return to her doctor or seek other types of therapy until July 2008 when she began a course of massage therapy as recommended by Dr. Hershler. Moreover, (the Plaintiff) went to work and carried out her regular duties during this period with only limited discomfort as corroborated by the evidence of Ms. Sawicki and Ms. Hildebrandt. With her return to regular work duties, (the Plaintiff) was also capable of engaging in her only physical recreational activity: going for walks. As walking was a regular part of her job each day, it is likely that she was capable of returning to her pre-accident recreational walking soon after she returned to work.

Damages were assessed as follows:

1. Non-pecuniary damages $35,000.

2. Past loss of wages $1,474.15.

3. Future loss of earning capacity $3,158.

4. Special damages $665.03.

5. Cost of future care $1,353.

6. Loss of housekeeping services $4,704.

One procedurally interesting part of this decision was the issue of the admissibility of a treating doctor’s CL-19 report. When people apply to ICBC for no fault benefits they have the right to obtain a report in the prescribed form from treating physicians. The prescribed form is known as a CL-19 which is a short form fill in the blanks type of a document in which treating doctors are asked to answer certain questions relating injuries and disability. In this case the Plaintiff wished for the doctor’s opinion contained in the CL-19 to be admitted into evidence. The defence opposed arguing that the report does not comply with Rule 40A (the supreme court rule dealing with the admissibility of expert opinion evidence) The court ruled the report inadmissible finding as follows:

[6] Clearly both parties’ positions have merit. There was nothing further (the Plaintiff’s) counsel could have done to secure a report from Dr. Rondeau that complied with the Rules of Court. On the other hand, Mr. Sharma’s counsel had no notice of the nature of Dr. Rondeau’s opinion and an adjournment of the trial at this late stage would not have been appropriate.

[7] I heard Dr. Rondeau’s evidence in a voir dire subject to a ruling on its admissibility. In my view, apart from his observations of (the Plaintiff’s) symptoms and his chronology of events, his testimony had very little probative value. First, Dr. Rondeau did not diagnose (the Plaintiff) as having myofacial pain syndrome. This was simply a question in his mind when he completed the CL-19 form about six weeks after the accident which was far too soon to make such a diagnosis. Second, although he observed some signs that she suffered from post traumatic stress disorder, there was also no definite diagnosis of PTSD at the time the CL-19 was completed. It is also my view that the diagnosis of such psychological conditions may well be outside the expertise of a family physician. Accordingly, the weight that could be applied to the opinion evidence of Dr. Rondeau is very limited.

[8] In these circumstances, it is appropriate to exercise my discretion in favour of the defendant and exclude Dr. Rondeau’s opinion evidence. The CL-19 does not meet the minimum requirements for a medical/legal opinion and it would prejudice Mr. Sharma if I were to admit the evidence despite its deficiencies. On the other hand, even if I were to admit Dr. Rondeau’s opinion evidence, it adds little to the plaintiff’s case.

Deductions of ICBC Part 7 Benefits in BC Tort Claims

Written by admin on November 13, 2008. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 51 Comments on Deductions of ICBC Part 7 Benefits in BC Tort Claims

Reasons for judgement were released today addressing the deductions of ICBC Part 7 benefits from a tort award.
If you are injured in a BC car crash and are insured with ICBC you have the right to apply for your ICBC No-Fault Benefits. These include certain rehabilitation and wage loss benefits. Whether or not you are at fault for the collision you should apply for these part 7 benefits.
In your tort claim (your claim for compensation against the at fault motorist) the defendant can argue that any amount he/she needs to pay you in damages should be reduced by the amount of Part 7 benefits you are entitled to. Whether or not you actually received these benefits is irrelevant!
In today’s case the trial judge awarded various damages including $10,000 for the cost of future medical care. The defendant argued that the $10,000 award should be deducted because the Plaintiff could receive payment from ICBC directly for those future medical expenses.
The court dismissed this defence argument finding as follows:

[22] In this case, I am persuaded that there is an issue about whether the plaintiff’s medication is covered by Part 7 at all, given that it not only provides benefits incurred by the insured as a result of the injury but also from conditions exacerbated by the accident.

[23] I find that the amount awarded for the cost of future care, particularly medication, is not to be deducted from the judgment.

This case summarizecd the law of Part 7 benefit decutions very well, particularly the court held that:

1. When considering a s. 25 deduction, the central question is whether the plaintiff is a person who is or would have been entitled to Part 7 benefits. If the answer to that question is affirmative, the court must estimate the value of further payments that the Corporation is authorized or required to make under the Regulation, and deduct that amount from the judgment: Sovani v. Jin, 2005 BCSC 1285, 47 B.C.L.R. (4^th) 97.

2. Issues between the plaintiff and ICBC over delivery of Part 7 benefits are not relevant considerations in determining a s. 25 deduction: Sovani.

3. The court has no discretion to reduce an estimate of future s. 88(1) benefits for the purposes of a s. 25 deduction: Ayles (Guardian of) v. Talastasin, 2000 BCCA 87, 73 B.C.L.R. (3d) 60.

4. Medication is an expense that falls under the mandatory or non-discretionary provision of s.88(1) of the Regulation: Ayles.

5. Section 88(1) requires the Corporation to pay benefits for all reasonable expenses incurred by the insured as a result of the injury.

6. The plaintiff may have had a pre-accident underlying “disease” entitling the Corporation to invoke an exemption from liability contained in s. 96(f) of the Regulation: Mawji v. Insurance Corporation of British Columbia, 2001 BCSC 1610.

7. Trial judges must be cautious in estimating s. 25 deductions and any uncertainty as to entitlement must be resolved in favour of the plaintiff: Schmitt v. Thomson, 18 B.C.L.R. (3d) 153, 132 D.L.R. (4^th) 310 (C.A.); Lynne v. Pearson, 55 B.C.L.R. (3d) 401, 111 B.C.A.C. 139.

If you are insured with ICBC and are injured by another in a BC car crash make sure you apply for your Part 7 Benefits. If you don’t it can take money right out of your pocket in your tort claim and cases such as this one are a stark reminder that ICBC often makes such an argument in tort claims.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on November 10, 2008. Posted in Civil Procedure, independent medical exams.

Reasons for judgement were released today dismissing an ICBC application for a second independent medical exam in a tort claim and granting an ICBC application for a ‘work capacity evaluation’.
Applications for ‘independent medical examinations‘ under Rule 30 of the BC Rules of Court arise frequently in ICBC claims when the Defendant claims that they need such an examination to ‘level the playing field‘. These applications are discretionary and given the frequency of such applications being adjudicated in our courts there is no shortage of useful precedents reported. Today’s case doesn’t create any new law, I report it nonetheless to give my readers insight into the types of procedural disputes sometimes arising in ICBC claims.
The Plaintiff in this case had been assessed by a variety of physicians in a medico-legal context. The Defendant wished to have the plaintiff assessed by a physiatrist and a work capacity evaluator.
In dismissing the application for an assessment by a physiatrist the court states as follows:
[4] It was submitted by defendant’s counsel that Dr. Maloon is an orthopedic surgeon, whereas Dr. Hirsch is a physiatrist, and it is important to have a rebuttal report, if you will, from a physiatrist in order to put the defendants on equal footing. I disagree with that submission. I disagree because as has been pointed out to me, Dr. Maloon had extensive clinical and consultation reports from a number of practitioners, including Dr. Jaworski, who was a treating physiatrist. As well, he had the clinical records and notes from Mr. Haleta’s treating general practitioner, among others. There comes a time when the parties can no longer seek to usurp the function of the court or the jury by asking for continuous expert reports from various specialists. These are matters for counsel to deal with by way of cross-examination, especially when there are conflicting opinions. There is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant. Nothing of concern should arise merely by the fact that the defendants chose to have the plaintiff examined by an orthopod and only sometime later find out that counsel for the plaintiff had their client seen by a physiatrist. Accordingly, I dismiss paragraph 1 of the applicants’ notice of motion.
In granting the order compelling the Plaintiff to attend a work capacity evaluation the court held as follows:
[5] A number of specialists/physicians who saw Mr. Haleta for other matters have recommended that he be seen by experts in functional and vocational capacity. In particular Dr. Reid, who is a psychologist, recommended, and I believe that Dr. le Nobel — correct me if I’m wrong — made a similar recommendation. It would seem to me that it would be appropriate for both parties to have the plaintiff seen by somebody to make a vocational capacity evaluation of Mr. Haleta, which would be of assistance to the court and to the jury in this particular case. Accordingly, I order that Mr. Haleta do attend the offices of Mr. Christopher Cook for the purposes of a work capacity evaluation to be performed by Mr. Cook, and that is to be held on Tuesday, the 18th of November, commencing at 9:00 a.m. at suite 202, 20689 Fraser Highway, Langley, British Columbia.

$75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Written by admin on November 10, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.
The Plaintiff was 23 years old at the time of trial. He was injured in 3 collisions, the first of which occured when he was only 10 years old.
The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).
The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years. The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.
Damages were awarded as follows:

Non-pecuniary damages $ 75,000

Loss of Earning Capacity $100,000

Cost of Future Care $ 12,650

Special Damages $ 3,570

Past Income Loss $ 698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings. That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury. Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.
Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine. Specifically he noted that:
[19] The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms. There have been few objective physical findings. However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years. It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

$35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Written by admin on November 6, 2008. Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 52 Comments on $35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $45,000 in total damages as a result of a 2004 BC car crash.
The crash was significant. The Plainitiff was travelling at 60 kilometers per hour when his vehicle was struck head on by the Defendant. The Plaintiff’s vehicle was destroyed as a result of the impact.
The court found that the Plaintiff suffered various soft tissue injuries as a result of this crash and that these injuries plateaued by the end of 2006 to about 90% of the Plaintiff’s pre accident level. The court’s key findings are made at paragraphs 28-31 which I set out below:

[28] On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29] I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30] I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31] I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect (the Plaintiff) in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in (the Plaintiff’s) usual activities on a sporadic basis, perhaps every month or so.

The following damages were awarded:

a) non-pecuniary damages of $35,000.00;

b) past income loss of $8,250.00;

c) special damages of $2,786.15; and

d) court order interest on the past income loss and special damages awards.

More on Settlement Offers and Rule 37B

Written by admin on November 6, 2008. Posted in Civil Procedure. 73 Comments on More on Settlement Offers and Rule 37B

Reasons for judgement were released today refusing to award the successful litigant double costs pursuant to Rule 37B.
The Petitioner City sued the Respondent Kennel operator seeking a declaration that the Kennel was in breach of a Bylaw and seeking conjunctive orders. Before trial (and before Rule 37 was replaced with Rule 37B) the Respondent offered to settle on the following terms ‘this proceeding on the basis that the Petitioner’s claim be dismissed and costs in accordance with Rule 37‘
The offer was delivered less than 7 days before the trial commenced. The claim was dismissed at trial.
The Respondents asked that the City pay them Double Costs. Madam Justice Loo refused to order double costs noting that the formal offer of settlement conferred no benefit to the Respondents aside from costs. The key reasons are set out at paragraph 13-15 which hold as follows:

[13] The Court of Appeal in a number of cases has stated that the purpose of the double costs provisions of Rule 37 is to encourage early and reasonable settlements of disputes and discourage frivolous litigation: Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330, 2 B.C.L.R. (3d) 201 (C.A.) at para. 28; Vukelic v. Canada (1997), 37 B.C.L.R. (3d) 217 at paras. 9 to 13, 94 B.C.A.C. 147; Mackenzie v. Brooks, 1999 BCCA 623 at para. 24 (sub nom. Mackenzie v. Brooks et al.), 130 B.C.A.C. 95.

[14] Although Rule 37 is no longer in force, I find these statements of principle helpful in view of the express language of Rule 37B(4).

[15] The petitioner’s claim was not frivolous and it was not a claim that was bound to fail. The offer to settle conferred no benefit on the petitioner aside from costs and conferred virtually no benefit to those who complained about the noise of the barking dogs.

This is the second case that I’m aware of in Rule 37-B’s short history which refuses to award double costs to a litigant who made what can be characterized as a nuisance value offer. It appears that if a claim is not frivolous and is not bound to fail, double costs might not be granted when the claim does indeed fail at trial if the formal settlement offer conveys ‘no benefit aside from costs’ to the litigant.
If you are proceeding to trial in an ICBC claim or are considering an ICBC settlement offer cases such as this one are worth reviewing. I will continue to post about Rule 37B cases as they come to my attention.

Passenger Found Liable for Grabbing Steering Wheel of Vehicle

Written by admin on November 5, 2008. Posted in ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Passenger Found Liable for Grabbing Steering Wheel of Vehicle

(Please note the case discussed in this article went before the BC Court of Appeal in March, 2010, you can click here to read my post discussing the Court of Appeals Reasons)
Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004. The vehicle left the roadway, hit a ditch and over-turned. 3 of the 4 occupants sued for personal injuries.
The front seat passenger grabbed the steering wheel while the vehicle was in operation. The vehicle then lost control. The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night. Hers was the only memory subject to the confounding effect of excessive alcohol consumption. I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41] Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol. The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish. I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did. The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel. I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42] I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night. Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43] In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch. (the driver) was not negligent and did not contribute to the cause of the accident. (the driver) was sober and was competent to drive the Jeep. No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.
In this case the vehicle was owned by the front seat passenger’s father. He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle. Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86 (1) In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a) is living with, and as a member of the family of, the owner, or

(b) acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle. In fact the court found that:
[24] The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession. His purpose for imposing that rule was to keep the children and his cars safe. That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends. The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.
The court found that the father (owner) did consent in these circumstances finding that:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro. (the owner) freely gave the Jeep’s keys to (his daughter). She freely gave the keys to (the driver). (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!
Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle. Specifically the court found that:

[51] When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory. As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52] For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it. (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.

Soft Tissue Injury Nets $35,000 for Pain and Suffering in Rule 68 Claim

Written by admin on November 5, 2008. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

I’m on the road working on ICBC claims in Kelowna today so today’s BC personal injury update will be a little lighter on detail than usual.
Yesterday the BC Supreme Court released reasons for judgement awarding just over $82,000 in damages as a result of injuries and loss sustained in a 2005 BC Car Accident in Victoria, BC.
The Plaintiff was a 24 year old graphic designer at the time of the accident.
The court made the following finding with respect to injury:

[83] From the foregoing evidence and my findings, I find that the plaintiff has established that he suffered a soft tissue injury to his cervical and lumbar spine in the accident. Dr. Chan’s report does not attempt to classify the severity of the injury, but he did note the injury to be resolving at about two months post-accident, with a conservative treatment regime. The plaintiff missed a week of work immediately after the accident, then returned to work half days for three to four months, and then went back to full-time hours of seven to eight hours a day. He considers the last significant improvement in his condition to be about six months post-accident.

[84] To date, just over three years as of the date of trial, the plaintiff remains unable to work the additional hours per day to bring him to his pre-accident level of 50 to 60 hours per week, and continues to experience “flare ups” with pain in his lower back when engaging prolonged periods of standing or sitting. Certain physical activities and sports that he previously enjoyed, he now engages in at a reduced level or has declined to continue with, for example snowboarding and mowing his parents’ lawn. In my view, the evidence establishes a minimal ongoing impairment arising from the soft tissue injuries he sustained in the accident.

Damages were awarded as follows:

(a) Non-pecuniary damages: $35,000.00

(b) Damages for lost income: $15,647.18

(d) Special damages: $ 1,845.36

Total: $82,492.54

This is one of the few ICBC injury claims that I’m aware of that proceeded through trial under the relatively new Rule 68. Rule 68 should be carefully reviewed for anyone prosecuting an ICBC injury claim that may be worth less than $100,000 as this rule presents some benefits and restrictions in the way in which an ICBC claim can be advanced.