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The Civil Consequences – ICBC and Drunk Drivers

As a BC personal injury lawyer that started out my career in criminal defence work I have seen both the civil and criminal consequences of drunk driving. Most people know about the criminal consequences but the civil consequences can be much worse.
If you are convicted of impaired driving, you will lose your license for some time, you will have a criminal record, you may even spend a little time in jail. When all is done you pick your life up and carry on. The civil consequences, on the other hand, are not always so easy to get away from.
Imagine these facts: You drive drunk. You hit another car and are at fault. Both cars are totaled. You are injured. The other driver is injured. What can the civil consequences be?
You will be in breach of your ICBC insurance. ICBC will not cover your medical expenses. ICBC will not pay for your lost wages. ICBC will not fix your car. ICBC pays off the other driver’s vehicle damage claim (let’s say $20,000). The other driver’s injury claim gets settled, lets say for $100,000. Now ICBC will come after you for the extent of the other drivers claims, $120,000 in this example.
Where does this leave you
1. No car (maybe still making car payments on a totaled car)
2. Injuries with mounting medical and rehabilitation debts
3. Lost wages
4. A massive debt to ICBC. Don’t feel like paying? Good luck having your insurance and driver’s license renewed. Thinking of driving on your suspended license? Say hi to your criminal lawyer when he visits you in jail.
The civil consequences can be a lot worse for impaired driving in BC than the criminal consequences. These can include a debt so great that it will take a lifetime to pay off. There are countless sound reasons not to drive drunk and the civil consequences of impaired driving will hit you hardest in pocket book.

ICBC and Hit and Run "Accidents"

(Note: the case discussed in the below article was upheld by the BC Court of Appeal on March 19, 2010)
What if you are injured in British Columbia in a Hit and Run motor vehicle accident where you could not ascertain the name of the driver / owner of the vehicle that injured you?  Can you claim compensation?  Often times yes!
Section 24 of the Insurance (Vehicle) Act permits victims of BC Hit and Run accidents to sue ICBC directly for such accidents in certain circumstances.
Section 24 has some restrictions and limitations in it and its imporatant to read this section and BC court cases interpretting it carefully to determine if the victim of a hit and run can seek money from ICBC.
What if the person who committed the hit and run was also committing another crime at the time such as fleeing from the scene of a robbery?  Can comepensation be sought in such circumstances?  Reasons for judgement were released today that seem to say yes.
In this case the Plaintiff was returning her shopping cart at the Real Canadian Supestore when a blue van drove by her and the passenger reached out and snatched her purse from her shoulder.  During this crime the Plaintiff ‘went flying backwards down the parking lot (and) hit her head on the pavement”.  She was injured and sued ICBC pursuant to section 24.
ICBC brought an applicaiton to dismiss the lawsuit claiming that s. 24 does not apply in circumstances where the unknown motorist is commiting a crime in the course of the hit and run.  The ICBC lawyer argued that “section 24…confines its amvit to motor vehicle accidents and that the present case involves, not an accident arising from negligence, but rather an intentional act amounting to a civil assault and battery and conversion, or in terms of the criminal law, an assault and theft or a robbery“.
In other words, the ICBC lawyer argued that the Plaintiff was not injured through the negligenct use of a motor vehicle rather because of an intentional criminal act.
The Honourable Mr. Justice Cullen dismissed the ICBC applicaiton and permitted the Plaintiff to carry on her lawsuit against ICBC as nominal defendant.   Mr. Justice Cullen concluded that there is nothing in section 24 that prevents a person from suing ICBC when the unidentified motorist was committing an intentional tort when injuring the Plaintiff.
For your convenience I reproduce the most compelling findings below:

[36] In the case at bar, it is clear that at all material times, the tortfeasor’s motor vehicle was being used as a motor vehicle.  That it was being used to facilitate the commission of a criminal offense no more negates its use as a motor vehicle than if it were being driven to or from the scene of a bank robbery, or as a vehicle to transport a kidnap victim.  In my view, a finding in the present case that the motor vehicle was being used as a motor vehicle, notwithstanding that it was used in the commission of the offense of robbery or the civil tort of assault, is consistent with the reasoning of Binnie J. in the Citadel case.  It is clear from Binnie J.’s reasoning that the fact a motor vehicle is used to facilitate or effect a criminal purpose does not render its use as anything other than as a motor vehicle.

[37] The question that arises in the case at bar is whether the use of the motor vehicle was fortuitous or incidental to the act that caused the injury or whether it was integral to it.

[38] In my view, in the case at bar, unlike the cases of Citadel, Chan, Collier or Lumbermens, the act causing the alleged injury to the plaintiff was directly caused, and not isolated from, or severed from the use of a vehicle as a vehicle.  Here, the uncontradicted evidence is that, as the passenger in the vehicle grabbed the plaintiff’s purse, which she was carrying on her shoulder, the driver accelerated the vehicle, and it was that acceleration in combination with the passenger’s grip on the plaintiff’s purse that caused her to fall to the ground and be dragged by the vehicle as it accelerated away.  For the present case to be analogous to the circumstances in Chan, in which Binnie J. found a severance between the tortfeasor’s use or operation of his motor vehicle and the act causing the injury, the tortfeasor’s motor vehicle in the present case would have had to be stationary and not implicated in the action by which the plaintiff was thrown to the ground and injured.  In my view, there is a clear causal link between the use of a motor vehicle as a motor vehicle in the present case, and the injuries alleged by the plaintiff.

[39] In my view, this case is distinguishable from the facts in Co-operative Fire, supra, relied on by the applicant.  In that case the court was confronted with the need to construe the effects of an exclusion clause in a policy of insurance excluding coverage for a “bodily injury or damage caused intentionally by or at the direction of an insured”, and as well s. 2 of the Insurance Act, 1968 of New Brunswick, upon the circumstances at issue.  Section 2 of the Insurance Act reads as follows:

… a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity … except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage ….

[40] Thus the court in Co-operative Fire was dealing with whether an act by the insured was governed by a term in the contract of insurance excluding liability for intentional acts.  The court found that although the consequences were unintended in that case, the unlawful act causing them was not, and hence it (the act) fell within the scope of the exclusion clause.

[41] In the present case, there is no exclusion clause.  It is true, as the applicant submits, that in s. 24 the occurrence giving rise to the bodily injury or death that is the subject of a claim is referred to as an accident in various subsections.  However, in those cases that the applicant relies on as support for the proposition that the word “accident” is to be given “its ordinary and popular meaning” and means “any unlooked for mishap or occurrence”, the operative wording is somewhat different from that in the case at bar.  In Canadian Indemnity, supra, the relevant term being applied was as follows:

The Coverage given by this policy applies only to accidents or occurrences arising out of and incidental to the business operations of the Insured and originating during the policy period.

[see Straits Towing Ltd. v. Washington Iron Works¸ [1970] 74 W.W.R. 228, 1970 CarswellBC 157 (er) (B.C.S.C.) at 230].

[42] In Mutual of Omaha, supra, the applicable term under consideration was:

“Injuries” means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained….

[43] Thus, in both cases, unlike in the present case, the policies of insurance contained a clause that expressly limited coverage to damage or injuries caused by accidents.

[44] As Finch J.A. noted in Chan, supra, however, s. 24 does not refer to bodily injury or death arising from the negligent or accidental use or operation of a motor vehicle.  It requires “only that the plaintiff establish ‘a cause of action’ against the driver (or owner) and that the injury arises out of the use or operation of the motor vehicle”.  It was Finch J.A.’s conclusion in Chan that the injury arose out of the use or operation of the motor vehicle (that is, his conclusion with respect to causation) that attracted disagreement from the Supreme Court of Canada in Citadel, not his conclusion that intentional acts fall within the scope of s. 24.

[45] Indeed, in Citadel, Binnie J., in giving examples of what would attract coverage under s. 24, did reference actions (in exploring the purpose test) that, under the reasoning in Saindon, would attract the characterization of intentional.  In particular, he gave an example of a motorist intentionally trying to jump his vehicle over the interstate highway at high speed, “Evel Knievel style”, and crashing down on the plaintiff’s vehicle.  There, he held, “…there is no doubt that [the tortfeasor] would have been driving the vehicle and driving meets the Amos purpose test.”

[46] Justice Binnie observed that the relevant Ontario legislation, which is similar to s. 24, “is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle”.  Binnie J. quite explicitly rejected the argument that “coverage can be denied if the tortfeasor is engaging (as here) in criminal activity”.  He went on to note “[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example”.

[47] In my view, the reasoning of Binnie J. in Citadel is consistent with that of Finch J.A. in Chan, so far as it relates to the extent s. 24 covers intentional criminal acts.  The case at bar does not involve a tortfeasor seeking coverage for his intentional criminal actions in the face of either policy considerations or an express statutory or contractual exclusion.  Rather, it involves an insured seeking coverage for an injury arising from the use or operation of a motor vehicle, which is the foundation for s. 24.  The use of the word “accident” to describe the occurrence giving rise to the injury does not, in my view, modify the scope of s. 24 to exclude intentional criminal acts of which the use or operation of a motor vehicle forms an integral part.  In any event, in the present case, while an inference can be drawn that the driver of the motor vehicle was complicit in his passenger’s unlawful act, the evidence does not go so far as to preclude a finding that the use or operation of the motor vehicle in the course of those events was, as well, negligent.  There was no evidence that the tortfeasor intended to pull over or injure the plaintiff, only that he intended to facilitate a theft that involved some indirect application of force to the plaintiff.  The ultimate cause of the plaintiff’s alleged injuries was incidental to the tortfeasor’s purpose and it could not be said to be inconsistent with the meaning of the word “accident” as it is used in s. 24.

[48] I therefore dismiss the defendant’s application for an order dismissing the plaintiff’s action, and order costs to the plaintiff.


$50,000 Pain and Suffering Awarded for Soft Tissue Injuries with Chronic Pain

Note: The case discussed in the below entry was overturned by the BC Court of Appeal with respect to the Diminished Earning Capacity Award on March 18, 2010.  You can read my post on the BCCA’s decision by clicking here.
Reasons for judgement were released today compensating a Plaintiff for injuries and losses sustained in a 2004 car accident.
The Plaintiff was driving her daughter to pre-school when her vehicle was rear-ended. The impact was ‘sudden and relatively severe‘ and caused enough damage to render the Plaintiff’s vehicle a write-off.
The court heard from a variety of medical ‘expert witnesses’ and placed the most weight on the Plaintiff’s GP. The court found that the Plaintiff ‘now has chronic pain with her soft tissue injuries and that pain and discomfort, in varying levels depending on activity level, will continue indefenately.’ The court also found that the Plaintiff suffers from ‘anxiety associated witht he accident’ and that ‘(she) is at risk of premature arthritis in her cervical spine and left shoulder‘.
In awarding $50,000 for the Plaintiff’s non-pecuniary loss (pain and suffering and loss of enjoyment of life) the court noted that:

[14] The injuries have affected the plaintiff’s family relationships. She is not able to participate in normal physical family and recreational activities to the same extent as before the accident. She cannot perform housework or garden to the same extent. She presents as a perfectionist and is clearly bothered by these restrictions on activities that she enjoys and takes pride in.

[15] (The Plaintiff) is also anxious and, perhaps, somewhat depressed; her relationship with her husband has been adversely affected, and she is naturally concerned and upset that her children now turn more naturally to their father for physical support and comfort. In addition to the ongoing pain and discomfort that restricts general activities, these factors also affect enjoyment of life. I take them into account in determining a fit award for non-pecuniary loss.

The most interesting part of this judgement for me was the court’s discussion of loss of earning capacity. Here the court found that the Plaintiff does have permanent injuries but that these will have ‘slight, if any, actual impact on her future earnings‘.
What interested me was the courts comments trying to reconcile to seemingly opposed lines of authority from the BC Court of Appeal addressing loss of future earnings. When one asks for an award for ‘loss of future income’ or ‘loss of earning capacity’ one has to prove this loss. There are various ways of doing this at trial.
Here the Plaintiff advanced a claim of loss of earning capacity using the ‘capital asset approach‘ as set out by our Court of Appeal in Pallos v. ICBC. The Defence lawyer argued that a subsequent case (Steward v. Berezan) overruled the law as set out in Pallos.
After listening to this debate the court noted that:
44] With respect, it is not clear, as I understand Steward, how one gets to the capital asset approach without first proving a substantial possibility of future income loss in relation to the plaintiff’s position at the time of trial. I cannot reconcile that approach with the factors first listed in Brown, later summarized in Palmer, and finally approved in Pallos in the passages set out earlier in my reasons.

[45] It would be helpful if the Court of Appeal has an opportunity to address these issues fully. I observe that the Court of Appeal since held in one decision that Steward turned on its facts and did not create any new principle of law. The court also affirmed Parypa in the same decision. See Djukic v. Hahn, 2007 BCCA 203, at paras. 14 and 15.

Here the court held that “there is no reference in Steward to Pallos. Steward, in my view, does not over rule Pallos‘.
Mr. Justice Macaulay went on to reconcile the apparent conflict between these cases by concluding that Steward should be limited to its own ‘narrow factual circumstances‘ and awarding the Plaintiff damages based on the less stingent ‘capital asset approach‘.

$20,000 Awarded for Lingering Whiplash Injury

Reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car crash.
It was a rear-end accident. The Plaintiff was a passenger. In such cases fault is rarely at issue and here the ICBC defence lawyers admitted fault on behalf of the Defendant. The trial dealt only with the issue of quantum of damages (how much the injuries are worth).
The accident caused the Plaintiff to miss 2 weeks from work. When she returned her physical duties at work were somewhat limited. She took 14 physiotherapy sessions and saw her family physician several times after the accident.
The court’s relevant finding as to the extent of injury can be found at paragraph 64 of the judgement where the court held that:
[64] The evidence indicates to me that the plaintiff had an initial soft tissue injury to her neck and upper back and she substantially recovered approximately five months after the injuries, although the injuries to her upper back and shoulder area have lingered on to the point where Dr. Yong says they may last another one or two years.
$20,000 was awarded for the Plaintiff’s pain and suffering. No other damages were awarded although a claim for ‘loss of earning capacity’ was advanced.
As is often the case in ICBC claims that proceed to trial, here the defence lawyer argued that the Plaintiff’s award should be reduced for ‘failure to mitigate’. What this means is that if a person unreasonably fails to follow medical advice and following such advice would have made a difference the amount of compensation awarded can be reduced.
Mr. Justice Truscott refused to reduce the Plaintiff’s damages even though the evidence established that she ‘did not do all of her home exercises and id not take physiotherapy when she had asked for it‘.
Why was this evidence not good enough to reduce the Plaintiff’s damages? Because there was no medical evidence that had the Plaintiff followed this course of treatment that her injuries would have recovered any better than they had.  This case is a good example of the fact that the defence has the burden of proof when arguing ‘failure to mitigate‘ in an ICBC claim and that expert medical evidence should be tendered to discharge this burden when addressing the effects of a rehabilitation program.

Another ICBC LVI Trial, Another Award for Pain and Suffering

After a summary trial on June 23, 2008 pursuant to Rule 18-A (a rule that lets certain cases proceed to trial using affidavit’s as evidence instead of requiring the parties and witnesses to testify in person in court) reasons for judgement were released today awarding a Plaintiff $12,250.10 in compensation as a result of a 2005 Vancouver car crash.
This is another LVI case. The Plaintiff’s 1995 Honda Civic was rear-ended by a Ford F150 pickup truck. It was apparent that ‘this was a low impact collision’.
Many BC residents have received letters from ICBC telling them their claim has been denied based on ICBC’s LVI policy often referred to as ‘no-crash no cash’.
As is often the case, here the claim was brought to trial and the court recognized that an injury occurred despite the absence of significant vehicle damage. In reaching this conclusion Mr. Justice Williams made some useful comments about LVI crashes, specifically:

[18] This was undoubtedly a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is her self-report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces were greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

The court went on to find that the Plaintiff suffered injuries as follows:
[21] I find that the plaintiff is an honest witness and accept her evidence of the event and its consequences. On all the evidence, I conclude that the plaintiff was injured in the collision and that she experienced moderate discomfort in the first two or three months following the accident. With the passage of time, she made a steady and gradual recovery, although there was some ongoing but lessening discomfort over the following months. Fortunately for her, the degree of pain was not especially great, although it undoubtedly detracted from her everyday comfort and full enjoyment of life. To some degree, she experienced frustration and impatience with the way she felt. There is a paucity of evidence with respect to details of disruptions or difficulties that the injuries caused in her day to day routine.
$9,000 was awarded for pain and suffering, $2,031 for lost wages when she took time off work ‘to enable her to recover from her injuries’ and $1,219.10 in special damages (accident related out of pocket expenses).

"Please My Lord, No Jury For My ICBC Claim"

Did you know that either side to an ICBC claim in BC Supeme Court can elect trial by Jury (unless of course the claim is being prosecuted under Rule 66 or 68).
One of the practical effects of trial by Jury is that it makes claims longer and more expensive. I won’t get into all the reasons of why this is at this time but it is generally true.
ICBC often sets claims for jury trials when they involve Low Velocity Impacts or involve injuries with little objective verification.
What if you don’t want a trial by Jury? Can you do anything about it? The answer is sometimes.
Rule 39(27) of the BC Supreme Court rules deals with when a court may refuse a jury trial. One of the main challenges to trial by Jury is that the claims is to complex for the jury to deal with.
Such an applicaiton was brought recently and rejected by Master Tokarek who released written reasons for his decision today.
In this case the Plaintiff sued for various injuries sustained in a series of 4 accidents. In this case there was a significant amount of medical evidence that the Jury would have to deal with. The Plaintiff tried to get rid of ICBC’s jury notice arguing that “in light of all of the available reports, this matter is too complex and intricate for a jury to deal with“.
The court rejected this argument finding that
My impression, upon reading those reports, is that although there are a great many reports to deal with, they do not strike me as being overly complex or difficult. In fact, one or more of the reports, the exact numbers of which I neglect to make a note of so I cannot refer specifically to them in these reasons, but nevertheless one or more of these reports struck me as being very impressive in the way in which the author laid out in layman’s terms some of the definitions and explanations of what the symptoms and injuries were all about……There is in British Columbia, as plaintiff’s counsel candidly admitted, a very strong right to a party to choose a trial by jury, subject to the restrictions imposed by legislation, and therefore the onus does fall to the plaintiff to make its case that the defendant ought not to have its right to a jury trial. As I have said, I believe that the plaintiff has fallen short of satisfying that onus in this particular case.

Shameless Self Promotion – They Say All Press is Good Press…

On Monday Ian Mulgrew of the Vancouver Sun published an article discussing the wealth of on-line legal resources available to the public. As much as I don’t care for the the characterization ‘ambulance chaser’ I’ll thank Ian for referencing this blog as ‘respectable commentary’ concerning personal injury and ICBC claims.
There is no shortage of useful information available on-line for people interested in learning about the law and I second Ian’s endorsement of Google Reade Service as a great way to stay on top of recent commentary of interest. Check out Ian’s full article for the addresses of some great BC legal blogs, including one of my favourite for critical commentary on the BC judicial system, former BC Supreme Court Judge John Bouck’s blog.

Cyclist 100% At Fault for Collision with Concrete Mixer Truck

Reasons for judgment were released today finding a Plaintiff cyclist 100% at fault for a 2004 collision between his bicycle and a concrete mixer truck.
The collision was significant and resulted in severe injuries. In order for these to be compensable someone needs to be at fault for them. That’s what this trial focused on.
Here the Plaintiff was driving on the shoulder of the roadway approaching an intersection. The concrete mixer truck was attempting a right hand turn and the Plaintiff collided with the truck.
The court made some useful comments about the duties of cyclists who choose to drive on the shoulder of the road rather than on the roadway itself, namely that:

[55] The evidence clearly establishes that Mr. Sivasubramaniam failed to meet the standard of care required of a driver in the circumstances, and that he was negligent. He was driving on the shoulder of the roadway, rather than in the lane marked for vehicle travel. I accept that it would also have been hazardous for Mr. Sivasubramaniam to ride in a driving lane on such a busy street, but having chosen to ride in an area that is not designated for vehicles; and to pass vehicles on the right hand side while travelling in that area, Mr. Sivasubramaniam had a duty to take extra care to ensure that he was visible to drivers, and that he took precautions. This was particularly so as he approached a busy intersection. Options available to him included signalling and moving into the driving lane to his left when it was safe to do so, and proceeding through the intersection in that driving lane; or stopping and dismounting from his bicycle and crossing the intersection in the pedestrian crosswalk and then remounting his vehicle on the other side of Blue Mountain Street.

[56] At the very least, he ought to have slowed his bicycle and to have checked carefully for indications that vehicles were intending to turn right from Lougheed Highway onto Blue Mountain Street, before proceeding across the intersection to the right of traffic in the driving lanes.

[57] Instead of driving in a cautious fashion, I conclude that Mr. Sivasubramaniam was accelerating as he approached the intersection, and, as I have said earlier, steered to the right with the intention of either riding in the cross walk – a prohibited act – or riding near it.

The court summarized its findings at pargaraph 67 of the judgement concluding that the cyclist was 100% at fault stating that:
The evidence compels me to conclude that for some unknown reason, Mr. Sivasubramaniam simply failed to note the fact that Mr. Franz’s vehicle not only was intending to turn right, but had commenced that turn, and he failed to slow or stop his bicycle until it was too late to do so. Mr. Sivasubramaniam assumed, incorrectly, that the concrete mixer truck would proceed straight through the intersection. He made this assumption despite his knowledge that vehicles frequently do turn right at this intersection, and despite the signal flashing in several locations on the concrete mixer truck. Rather than slowing or stopping his bicycle as he approached the intersection, he was, I conclude, accelerating by continuing to pedal on the downward slope.

ICBC, Aggravation of Prior Injuries and "Failure to Mitigate"

Reasons for judgement were released today by the BC Supreme Court awarding damages to a Plaintiff as a result of a 2003 rear-end accident.
In this case the court found that the Plaintiff ‘had significant problems with her neck and back prior to the 2003 collision…..that the collision markedly aggravated her pre-existing condition. Her level of functioning has gradually improved between the time of the collision and the time of the trial….(although) she continues to suffer greater pain and disability than she did before the collision.
In valuing the Plaintiff’s accident related pain and suffering at $50,000, the court made the following findings:
It is clear that Ms. Antoniali was suffering from a previous injury to her back and neck at the time of the November 2003 collision. I am satisfied that the November collision caused substantial new or aggravated injury to Ms. Antoniali’s lower and mid back. She has suffered substantial disability, pain and suffering for the approximately four and one-half years since the collision. She has not been able to engage in most of the recreational pursuits that she engaged in before the collision. Her enjoyment of her new role as a mother has been negatively impacted. However, not all of the pain and disability she suffered during this period was attributable to the November collision. In the absence of the new injury she suffered in that collision she would have been troubled by the likely continuation of her pre-collision back and neck difficulties. I am satisfied that an award of $50,000 for non-pecuniary general damages for her collision related injuries, both past and future, is appropriate to reflect her loss. I assign those damages approximately equally to the pre-trial and post-trial periods.
In addition to interesting comments made about the aggravation of pre-existing injuries, the court made some key findings regarding ‘failure to mitigate’.
When a person is injured in a BC car crash and makes and ICBC tort claim, that person has a duty to take reasonable steps to minimize their losses. This is called the ‘duty to mitigate’. In this case the court found that the Plaintiff did fail to mitigate her losses and reduced some of her damages by up to 50% as a result of this failure. The key finding fueling this decision was that the Plaintiff’s symptoms would have been lessened had she followed the recommended program of stretching and exercises recommended by her physician.
In discussing the law of failure to mitigate Mr. Justice Preston referenced some well known passages canvassing this area of the law – for your convenience I will reproduce these below:
From Graham v. Rogers

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.

From Humphrey v. Rancier Estate

Another issue in assessment of damages, both non-pecuniary and pecuniary, is the plaintiff’s alleged failure to mitigate. The plaintiff has followed all her medical advice with the exception of reducing her weight. She was grossly obese before the accident, weighing about 260 pounds; she is not quite five feet tall. She now weighs over 200 pounds and continues to be grossly obese. There is no doubt on the medical evidence and the evidence of the therapists that her disability and pain would be less if she lost a considerable amount of weight.

The question is whether the plaintiff has taken reasonable steps to minimize her loss. The court must assess whether this test has been met by looking at all the circumstances of the case. Here we have an obese lady before the accident – someone who had been obese all her adult life. Her brother and sister are both obese. She appears, as her counsel put it, to be a weak woman in the sense that she has not had very good success at controlling her smoking or her eating on a consistent basis in the past despite medical advice and despite her clear efforts. She has tried to lose weight and has succeeded to an extent, at least temporarily. She is still trying, she says.

Of equal importance to the principle that the plaintiff must act reasonably in minimizing her loss and her damages, is another principle, namely that the defendant takes his victim as he finds him or her. In the circumstances in this case, given the plaintiff’s pre-accident history of obesity, given her particular personality, given her honest efforts from time to time to lose weight and kept it off, I am not satisfied that it can be said that the plaintiff has acted unreasonably and has failed to mitigate her damages, with the result that her damages should be lessened because she has not lost weight.

From Sagave v. Townsend

A defendant who injures a plaintiff is not entitled to expect perfection from the injured person in pursuing rehabilitation. The plaintiff must be reasonable and sincere in her efforts to promote recovery. The plaintiff was less than perfect, and undoubtedly paid a price in pain and discomfort on occasion. I accept however the plaintiff met a reasonable standard of care concerning exercise with regard to her own rehabilitation.

The defendant has not met the onus of proof required for the plaintiff to be found to have contributed to her own damages. In the assessment of her non-pecuniary damages however I have taken account of the need for the plaintiff to follow an almost daily regime in the future and assumed she will benefit accordingly.

This case serves as a striking example that an unreasonable failure to follow medical advice can have a severe impact on an ICBC claim. Here the Plaintiff’s awards for post trial pain and suffering, post trial loss of earning capacity and post trial cost of medical care were reduced by 50%!

Moving Down to Small Claims Court

So you are injured in a BC car accident and start an ICBC claim. ICBC makes an inadequate settlement offer for your pain and suffering and you start a lawsuit in BC Supreme Court. Then, your injuries take a turn for the better and you realize your claim can adequately be dealt with more efficiently in Small Claims Court. Can you apply to move your claim down? Absolutely!
Section 15 of the Supreme Court Act allows for such an application. Specifically, s. 15 reads as follows:

Transfer to Provincial Court

15 A judge or master may transfer proceedings to the Provincial Court of British Columbia if

(a) the proceedings are within the jurisdiction of the Provincial Court under the Small Claims Act,

(b) a party to the proceedings applies to the judge or master, or all parties to the proceedings agree to the transfer, and

(c) the judge or master considers it appropriate to do so.

Both Supreme Court and Small Claims Court have their own strengths and weaknesses as forums for advancing ICBC injury claims. The decision of which court to sue in is not always an easy one and it is a good idea to get a free consultation with an ICBC claims lawyer before deciding how to proceed. It is reassuring, however, to know that after you start in Supreme Court you can bring an application to transfer the proceeding to the lower court.
Today, reasons for judgement were released allowing just such an applicaiotn that is worth reviewing for anyone involved in an ICBC Supreme Court claim that is considering moving down to the Provincial Court.