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What Will ICBC's "Minor" Injury Caps Look Like?

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

As previously discussed, ICBC and the insurance lobby are on the cusp of persuading the BC Government to pass laws capping ‘minor’ injuries and reducing judicial remedies for those caught by the cap.
Assuming the insurance lobby get their way what will ‘minor’ injury caps look like?  The details are incomplete but this is what is known right now.
Who gets stuck with a cap?
If you are injured by the negligence of a distracted, impaired or otherwise careless driver you are having your judicial rights for non-pecuniary damages (pain and suffering) substituted with a government created artificial cap.  In a bizarre twist the Government is proposing to increase the benefits available to the careless driver if they are also injured at the cost of stripping some of the faultless party’s rights.
How much is the minor injury cap?
It is proposed that the cap will be set at $5,500.
How much of a reduction is this from my current legal rights?
A cap already exists across all of Canada (BC included) for non-pecuniary damages in negligence cases.  This cap was set by the Supreme Court of Canada in the late 1970’s at $100,000 and is indexed for inflation.  In today’s dollars non-pecuniary damages can be assessed up to, approximately, $370,000.
What is a “minor” injury?
I put the word “minor” in quotations because the definition will likely capture many claims most people would never consider to be minor.  It is not a medical term, rather, it is a phrase invented by the insurance industry.
The Government has been silent on the exact definition they will use however BC’s Attorney General has stated that the defininon will include “sprains, strains, mild whiplash, cuts, bruises and anxiety and stress“.  These all sound minor but the devil is in the details.  What if injuries become chronic problems?
ICBC hints that chronic injuries can get out of the cap however there’s a catch.  Not only will the injuries need to be chronic but also significantly disabling.  ICBC notes that “if the injury impacts your life for more than 12 months – for example, you’re still not able to go to work or school, have to modify your work hours or duties, or you’re unable to care for yourself – it will no longer be considered minor.”.
So, if ICBC gets their way “minor” will include injuries which can totally disable you for over 11 months.  They will also include permanent injuries so long as you can continue to “go to work or school“.
Who decides if my injury is “minor”?
The Government has been silent on this other than stating  “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.
Is ICBC Foolproof in Designating Injuries as “minor”?
Of course not.  In ICBC’s own words they consider many injuries minor that are, in reality, complex and costly.
What if I want to challenge the designation?
The BC Government has noted that disputes over “the classification of an injury” will be funneled to the BC Civil Resolution Tribunal.
This means that if ICBC (or whatever ‘medical professional’ the government designates as the decision maker) says you have minor injuries you will not be able to have this challenged in court.  Instead you will be forced into a tribunal system.  The tribunal is not presently equipped to handle cases of medical complexity.  They currently only deal with strata fee disputes and very minor small claims.
As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.
The Tribunal also does not have the ability to make binding judgements in Small Claims cases with s. 56.1 of the Civil Resolution Tribunal Act allowing a losing litigant to simply ‘object’ to the result.  The law states that “A party that is given notice of a final decision in relation to a tribunal small claim may make a notice of objection…..If a party makes a notice of objection under this section the final decision is not binding on any party“.
The above are just a few of the shortcomings the BC Government will have to overhaul if they stick to their plan to funnel ‘minor’ injury claims to the Tribunal.
When will the cap come into force?
The BC Government is proposing that people injured by negligent drivers on or after April 1, 2019 will be caught by the cap.
Can I do anything about this?
Yes.  It is not too late to take action and tell the government ‘no to caps’ if you think this is a bad idea.

$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

Written by admin on . Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.
In today’s case (Gauthier v. Dubois) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a variety of injuries many of which enjoyed good recovery.  Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128]     Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129]     Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130]     I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131]     Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132]     Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133]     The plaintiff advances no argument in this regard.

[134]     Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135]     Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136]     Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137]     I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138]     It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139]     Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.

Government Plans to Strip Rights for Insurance Company Profits; ICBC Targeting Psychological Injury

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

Today the BC Government held a press conference where widespread changes targeting the rights of British Columbians to save ICBC money were announced.
In short the Government is creating an artificial cap on what they call ‘minor’ injuries.  As previously discussed even ICBC admits that the term minor injury catches injuries that are ‘complex and costly’.  The pain and suffering cap will be set at $5,500 and is set to kick in in April 2019.
The Government did not provide a full definition of what they call ‘minor’ but ICBC is already noting that in addition to soft tissue injuries that can disable you for up to a year the cap will also target psychological injuries with the insurer publishing a press release saying mental health issues such as ‘anxiety‘ will be caught by the cap.
The Government stated that “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.  If you wish to dispute this designation the government is limiting your rights here as well.  The press release notes that certain ICBC claims will be forced to be adjudicated, not by the courts, but by the BC Civil Resolution Tribunal.  Disputes over “the classification of an injury” will be funneled this way.
As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.
Lastly, if you wish to not have your rights stripped by caps the Government is asking that the victim of bad drivers, not the bad drivers themselves, pay more stating that “Drivers will have an option to purchase additional coverage for a higher limit in pain and suffering compensation. The limit will be set at $75,000 and will cost approximately $1,300 a year, on top of the cost of their basic and other optional insurance. Charging for this optional coverage means the customers who stand to benefit from increased coverage will pay for it, rather than every B.C. driver.”
You read that right – if you don’t want your rights stripped you need to pay $1,300 more per year, not the distracted and impaired drivers on our roads!
As Yogi Berra said, It Ain’t Over Till It’s Over!  If the above strikes you as unfair please  contact your MLA and tell the government plainly and clearly ‘no to caps’.

ICBC Admits Lobbied "Minor" Injury Caps Will Impact "Complex and Costly" Claims

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

As discussed last month, after years of record profits ICBC is experiencing a bout of financial hardship.  In turn the government is considering stripping your rights if you are injured by a distracted or impaired driver.  Stripping judicial rights to save bad drivers and ICBC money.  A poor trade-off.
Today ICBC published a press release noting they “are working hard alongside government to take the steps necessary to bring about long-term solutions which will put ICBC back on a stable financial footing, one that will create a sustainable auto insurance system for B.C.”
The “work” is persuading government to pass a law placing a cap on what they call ‘minor’ injury claims.
ICBC’s own press release, however, advanced the best argument why caps are a defective idea that target seriously injured victims.
In ICBC’s own words
“older claims – some dating as far back as 2010 – which were initially presented as minor injury claims have since emerged as more complex and costly, large loss claims. Over the past 12 months, we have experienced an unprecedented 80 per cent growth in large loss claims which have an average cost of $450,000 per claim.”
I could not make the argument better myself.   You can be injured by a bad driver and suffer “complex and costly” injury that initially presents as minor.  ICBC knows a “caps” law will catch claims worth hundreds of thousands dollars and instead result in victims receiving pennies on the dollar for long term pain and disability.  They want victims to shoulder the shortfall so bad drivers and the insurance industry can benefit.
If this seems unfair to you contact your MLA and tell the government plainly and clearly ‘no to caps’.

Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

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

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.
In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter.  He pursued the shoplifter to his vehicle.  When confronted the shoplifter ran the plaintiff over and injured him.  The collision was described as follows:

[17]        The plaintiff described what happened.  When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle.  The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”.  He asked for the merchandise back.  The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.  

[18]        At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance.  His feet slid under the passenger-side door.  The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot.  He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go.  When he let go, the passenger-side door hit him.  As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle.  The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19]        The plaintiff attempted to get up.  However, a bystander said “I am not sure if you realize what just happened to you.  You should probably stay down”.  So he did.  First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident.  The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88]        I find that, in this case, the vehicle had not been started when the plaintiff approached it.  I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93]        Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable. 

[94]        Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support.  In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty.  The trial judge found no contributory negligence.  On appeal, the Ontario Court of Appeal found the officer to be 25% negligent.  However, on further appeal to the Supreme Court of Canada, that decision was reversed.  At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95]        Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.  

[96]        Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle.  I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.

$75,000 Non-Pecuniary Assessment for Chronic Myofascial Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic injuries sustained as a result of two collisions.
In today’s case (Anderson v. Gagnon) the Plaintiff was involved in two collisions that the Defendants were responsible for.  The collisions resulted in chronic myofascial injury which lingered to the time of trial several years later with a prognosis of some likely lingering symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Armstrong provided the following reasons:

[93]        In this case, I am satisfied that the plaintiff has suffered a myofascial injury to the paraspinal muscles of the back of her neck, the trapezius rhomboid muscles of the upper back that are chronic and will be ongoing. There are no findings of underlying disc injury or nerve root impingement or other potential injuries.

[94]        The plaintiff’s complaint of chest symptoms is not significant and likely reflect changes as a result of her myofascial pain.

[95]        I accept Dr. Travlos’ conclusion that the hip symptoms cannot be attributed to the accident. The plaintiff has been diligent in participating with various treatment opportunities and those therapists have been the mainstay of her treatment and pain management. The optimum strategy is to continue her exercise activity although she may not respond positively given the length of time the symptoms have persisted since the accident.

[96]        Intermittent massage therapies, physiotherapy and acupuncture are reasonable treatments for the plaintiff to pursue as a means to minimize the interference in her life activities caused by pain. She may also benefit from the use of some anti-inflammatory medications in the case of flare-up of pain.

[97]        Although there is medical evidence that her ongoing symptoms might last indefinitely, or may not resolve in the near future, there are possibilities for improvement as evidenced by Dr. Travlos’ and Dr. Arthur’s recommendations and opinions.

[98]        Overall, the plaintiff is capable of doing chores and activities around her home but must be cognizant of the pain management techniques necessary to enable her to be active. Although she is capable of working full-time, some reduction in work hours may assist her with better pain management. I accept Dr. Travlos’ opinion that she is capable of working longer hours but may benefit from reducing the number of days worked during the week work. This reduction in work is essentially another tool Ms. Anderson has to manage her pain. It contributes to her overall enjoyment of life.

[99]        I am satisfied the plaintiff endures intermittent variable pain that is most taxing on days when she is more physically active or working. The plaintiff’s symptoms tend to worsen between physiotherapy or massage treatments. The symptoms rise to very discomforting levels and are ameliorated by those treatments and it would appear this pattern will continue for the foreseeable future. These injuries have limited her ability to enjoy dancing, skiing, snowshoeing, prolonged cycling, and activities with her children. The evidence suggests that she is fit and works consistently at maintaining her physical condition notwithstanding the symptoms of her injuries.

[100]     As a result of her inability to consistently and thoroughly clean and maintain her house, she has received housekeeping assistants; initially this happened every two weeks but has since been reduced to help once a month due to the cost…

112]     Taking into account the plaintiff’s age, the severity and duration of her pain, the absence of actual disability and emotional suffering, the impact on her family, the limits to her physical abilities, and her stoicism, I award non-pecuniary damages of $75,000.

Medical Malpractice Claim Not Too Complex for a Jury to Understand

Written by admin on . Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a defence request to have a jury struck from hearing a medical malpractice lawsuit.
In today’s case (Howe v. Hwang) the Plaintiff commenced a lawsuit alleging negligence following a series of complications relating to the surgical treatment of diverticulitis.
The parties settled on damages but the issues of liability (fault) remained open for the court to decide.  The Plaintiff elected trial by jury.  The Defendants objected arguing a medical malpractice case was too complex for a jury to understand.  Master Keighley disagreed and provided the following reasons in upholding the Plaintiff’s right to trial by jury :

[41]         My authority to grant the order sought is discretionary. In exercising this discretion, I must consider the issues holistically, in determining whether, at the conclusion of my analysis, the considerations raised by Rule 12-6(5) support the defence assertion that this case is not appropriate for a decision by a jury.

[42]         It may go without saying that the jury in this case will be required to engage in a prolonged examination of documents, that the resolution of the issues before this jury will require a scientific or local investigation and that the issues are of an intricate and complex nature. Thus my discretion is engaged.  

[43]         Amongst the factors which I have considered in determining that it is appropriate to have this case tried by a judge and jury, I have considered the following:

1.     The anticipated length of the trial.

[44]         The trial will not be a long one. It is presently anticipated by counsel that it will take perhaps ten or 11 days of the three weeks set aside. This reduction in time is primarily the result of the resolution of the claims against Dr. Crowley, and the agreement which has been reached with respect to damages. The jury will not be obliged to retain the technical knowledge they acquire for many weeks before delivering its verdict

2.     The number of experts to be called.

[45]         As I have indicated, the plaintiff will be relying on two experts and the defendant on three.

3.     The volume of expert evidence.

[46]         As is the case with most expert reports, the text is dense and replete with scientific terminology. But in objective terms the reports, as I have indicated, total 32 pages, far from a vast volume of expert reports.

4.     The nature and character of the expert evidence.

[47]         The jury will be obliged to consider conflicting opinion with respect to the conduct of the defendant. I have reviewed the medical reports. While I am untrained in medical matters I have no difficulty in following the rationale expressed by the experts or understanding the terminology used. I cannot see that a jury, properly instructed, will have difficulty in coming to a conclusion on the basis of technical issues alone. The opinions of all five experts are clearly stated and, apparently, objective. Juries are, of course, often called upon to deal with conflicting expert evidence with respect to medical issues in the context of personal injury litigation. I do not regard the terminology which appears in the pleadings or the expert reports as being mysterious or opaque. I am confident that with supplementary assistance from the experts, counsel and the presiding judge, the reports may be appropriately dealt with by a jury.

[48]         In summary, although the jury in this case will be obliged to deal with technically demanding scientific medical issues and unfamiliar terminology, as well as the conflicting evidence of experts, I am not satisfied that those considerations put this case beyond the range of functions credited to juries in our system.

[49]         As previously indicated to counsel, the application is dismissed. The issue of costs was dealt with at the conclusion of the hearing.

$75,000 Non-Pecuniary Assessment for Chronic Back and Hip Soft Tissue Injuries

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

Reasons for judgement were published this week by the BC Supreme Court, Chilliwack Registry, assessing damages for chronic soft tissue injuries caused by a collision.
In this recent case (De Groot v. Heller) the Plaintiff was involved in a 2012 collision that the Defendant accepted fault for. The crash caused soft tissue injuries to her hip and low back along with an aggravation of a pre-existing arthritic condition.  The symptoms lingered to the time of trial and were expected to negatively impact her moving forward.  In assessing non-pecuniary damages at $75,000 Mr. Justice Greyell provided the following reasons:
[125]     In my view, the evidence establishes that it is likely that the Accident aggravated Ms. De Groot’s underlying arthritic condition in her left hip. There is no evidence connecting her prior back complaints with back complaints brought on by the Accident. The lay witnesses called to testify on her behalf each confirmed that she was active in regularly walking her dogs and that she engaged in such activities as hiking, canoeing and horseback riding on the trips she made to the interior. It is also clear on the evidence that, post-Accident, her ability to engage in those activities is limited…

[130]     At the time of the trial, almost five years had passed since the Accident. Ms. De Groot continues to suffer from pain in her lower back and hip, which prevents her from enjoying the activities she enjoyed prior to the Accident, and while she has not missed time from work, she has difficulty sitting for long periods. She has difficulty lifting and carrying her child, and performing heavier household tasks. She and her husband have experienced difficulty with intimacy due to her injuries from the Accident. Ms. De Groot’s prognosis for improvement is uncertain.

[131]     After considering the principles set out in Stapley and the cases referred to by counsel, I award Ms. De Groot $75,000 in non-pecuniary damages.

Engineer Report Excluded Based on a "Where's the Science?" Objection

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, excluding the expert opinion of an engineer based on a report lacking adequate scientific foundation.
In the recent case (Young v. ICBC) the Plaintiff alleged being involved in a sideswipe collision caused by an unidentified motorist.  ICBC argued no such collision occurred and instead the Plaintiff likely collided with a concrete barrier.  ICBC attempted to introduce into evidence an engineering report to back up their theory.  The court refused to introduce the report and in doing so provided the following reasons criticizing its scientific foundation:
[6]             The plaintiff’s objection was summed up by her counsel in the phrase “where is the science?”.  Mr. Antifaev submits that the report’s shortcomings go well beyond the question of weight, and go to the very basis upon which expert evidence is admissible.  It involved no scientific analysis, measurements or research, but consists primarily of argument and speculation.  Mr. Sdoutz did not visit the scene of the accident but relies on Google Maps.  He did not measure anything, did not see the car, and cites no accident information, statistics or testing.  The hallmarks of scientific analysis, Mr. Antifaev asserts, are missing.  Moreover, argues Mr. Antifaev, the report is riddled with what must be considered at least confirmation bias, simply feeding back what ICBC requested in an email sent by an adjuster on June 9, 2017. 
…

[18]         I conclude that this evidence does not meet the Mohan criteria and should be excluded on that basis.  But even if I were to conclude otherwise, I would consider it appropriate to exercise my discretion to exclude the report as part the gatekeeping function that I am obliged to exercise vigilantly (see, for instance, JP v British Columbia (Children and Family Development), 2017 BCCA 308 at paras 148-150). 

[19]         As Mr. Harris acknowledged, an expert can only deal with the data and information that is available.  Here, as noted above, there was no data and little information available to Mr. Sdoutz.  As a result, it was impossible to undertake the sort of forensic analysis one would expect in support an opinion of this nature.  I am therefore asked to accept something of a much lower level of reliability, based upon an inadequate scientific foundation.  That, in my view, renders it unsafe to admit the report.  The potential benefit is low and the risk of prejudice high.

[20]         I make no finding of bias on the part of Mr. Sdoutz, whose expert assistance I have found valuable in the past.  I nevertheless agree with Mr. Antifaev that it is concerning that the report appears to have responded not to the initial retainer letter of January 2015, but rather to the inappropriate email of June 2017, and that its conclusions mirror the concerns raised in that email.  This adds to the risk, but my conclusion does not turn on it.

[21]         It follows that Mr. Sdoutz’s report must be excluded. 

BC Court of Appeal – Losing Control on Shoulder of Road is Prima Facie Negligence

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

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement as being ‘clearly wrong’ and finding that when a motorist loses control on the shoulder of a road a prima facie case of negligence is made out.
In today’s case (Gaebel v. Lipka) the Plaintiff was a passenger in a vehicle operated by the Defendant.  The Defendant drifted on to the shoulder of the road then “lost control, the vehicle fishtailed, crossed the road to the opposite side, travelled up onto an embankment, launched into the air and rolled over three times before landing.”.
The claim was dismissed at trial with a finding the Defendant was not negligent.  The Court of Appeal overturned this finding and provided the following reasons:

[29]         In my view driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. On this evidence, the only reasonable inference that can be drawn was that Mr. Lipka drove on the shoulder either because of a lack of attention or because he approached the curve too fast, or both.

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.