BC INJURY LAW – Page 62 – The MacIsaac Group of Law Firms

Claim That Settled Day Before Trial for Under $25,000 Reasonably Brought in Supreme Court

Written by admin on November 4, 2015. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Gonopolsky v. Hammerson) deciding if a case which settled the day before trail for an amount in the Small Claims Court jurisdiction was reasonably brought in Supreme Court. The decision was relevant as the Plaintiff’s entitled to Supreme Court Costs rested on the outcome.
In finding there was “sufficient reason” to commence the proceedings in Supreme Court Mr. Justice Brown provided the following reasons:

[36] Considering the nature of the injuries, and the effects on homemaking and employment, I find there was a substantial possibility the damages could exceed $25,000.

[37] Further, the plaintiff submits other sufficient reasons to commence action in Supreme Court were the insurer’s denial of coverage because the forces were insufficient to cause injury; and because the plaintiff was allegedly a worker, which if proven and given the defendant was, would see the action statute barred pursuant to s. 10(1) of the WCA.

[38] Addressing reasons for commencing action in Supreme Court, plaintiff’s counsel states in her affidavit, sworn September 10, 2015, at paras. 8 and 9 as follows:

8. On November 5, 2012, I received a phone call from [the ICBC adjuster who] confirmed to me at that time that ICBC’s position was that [the plaintiff] was working at the time of the Collision, and that they would require a WCAT determination on that issue.

9. On December 14, 2012, our office filled the Notice of Civil Claim commencing this action. At the time of filing, I was of the view that examinations for discovery would be necessary because of ICBC’s position regarding worker-worker issue. Based on the medical-legal reports of Dr. Sawhney, I was also of the view that there was a real and substantial chance that [the plaintiff’s] claim was worth in excess of $25,000.

[39] As for the WCAT issue, the defendant argued it was not complicated and could have been determined in Provincial Court. As for the basics on that matter, I understand the plaintiff was working as a cleaner at the time. The driver was on her way to work. The plaintiff’s position was that she was going to be dropped off downtown and that she was not on the way to work that day. The defendant pointed out the plaintiff was not yet legally eligible to work in Canada and, accordingly, argued the plaintiff could not recover a wage loss in the first place, making WCAT issues moot. That could be argued at trial, had it got there. As it was, the defendant never withdrew the defence before trial and when the action was commenced, the plaintiff could not reasonably be expected to know how that defence would play out.

[40] The defendant’s position that the impact’s velocity was too low to cause an injury somewhat further complicated the case, would likely call for examinations for discovery, and at some juncture might entail an engineer’s opinion. It is unlikely the defendant would invest capital in that line of defence for this case, but it is reasonable to say the plaintiff’s burden on causation would be somewhat heavier than in a case where the force of the accident is not really in issue, which weigh in favour of a trial in this court.

[41] Ultimately, the $22,500 settled figure compensated only non-pecuniary damages.

[42] As similarly noted in Spencer at para. 24, the defendant’s positions effectively increased the complexity of the claim and the plaintiff’s need for counsel. “By denying liability, causation and that the plaintiff suffered any loss, the plaintiff would have been required to prove these elements at trial.” Further, at para. 25, “In taking the position that this was a low velocity impact claim the defendants created the situation giving rise to this motion. Their pleadings raised a multitude of issues in their defence. Those issues raised complex questions of fact and law. It is unlikely that a layperson could address them competently.” WCAT issues are sometimes simple. But for the plaintiff, it raised questions of mixed fact and law that raised another redoubt the plaintiff had to overcome.

[43] The gap between the $25,000 threshold for small claims actions and the $22,500 settled on for non-pecuniary damages is not very wide, unlike the large gaps seen in some cases. A host of factors influence a settlement, but the amount settled here is at least within shouting distance of $25,000. Although that somewhat suggests the initial decision to bring action in the Supreme Court was reasonably defensible, standing alone, that is not sufficient reason.

[44] In summary, the plaintiff has met the burden of proof required, albeit not by a large margin, but I am satisfied on balance that considering the potential damages that could be awarded for the plaintiff’s claim and the complications raised by the minimal damage and worker-worker defence, the plaintiff had sufficient reason to bring the action in the Supreme Court of British Columbia.

[45] The plaintiff is entitled to costs of the action and of the application at Scale B.

Court Sets Mileage Rate at 50 cents / km for Independent Medical Exam Travel

Written by admin on November 2, 2015. Posted in Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, finding a Defendant should pay 50 cents per kilometer as reasonable mileage money when a Plaintiff is compelled to travel to see a defense selected physician.
In the recent case (Nieman v. Joyal) the Defendant wished to have the plaintiff examined by an occupational therapist int he course of an injury lawsuit but could not agree on various terms including appropriate conduct money. In finding 50 cents / km is reasonable Master McDiarmid provided the following reasons:

[28] A careful reading of Rule 7‑6 reveals that it refers to an order that the person submit to examination by a medical practitioner, and then the court is permitted to make an order respecting any expenses connected with the examination. No specific reference is made to the Schedule 3.

[29] It seems to me that there is no difference in principle between the reasonable expenses of a plaintiff attending his own doctor, such as was awarded at 50 cents a kilometre in several of the cases, including the ones of Justice Stewart and Justice Schultes, and a plaintiff attending an independent medical examination, especially where the plaintiff agrees to attend an independent medical examination located in a different city.

[30] Accordingly, I order the following:

1) the plaintiff is to attend to be examined by Gary Worthington‑White, an occupational therapist, on a date to be agreed upon by the parties, with liberty to apply if there are difficulties;

2) the defendant must provide conduct money as follows: firstly, mileage for 730 kilometres at 50 cents a kilometre, which is $365; secondly, overnight accommodation for one night at $175; and third, meals in the amount of $75. I apprehend that there will be at least four;

I know that it is approximately three and a half hours’ driving time from Burnaby to Kamloops, and it seems to me that what is reasonable here is that if the appointment ends before 4:30 p.m., it is reasonable for the plaintiff to drive home. So this is the next part of the order: If the appointment ends after 4:30 p.m. on the date it commences, the defendant must promptly reimburse the plaintiff for one additional night’s accommodation and $12 additional meal allowance;

3) if there are parking expenses not included in the hotel accommodation, those are to be promptly reimbursed upon being provided with the invoicing;

4) the plaintiff can submit actual meal expenses, including alcohol, less whatever he has received in his allowance, as costs and the registrar can determine the reasonableness on assessment; and

5) any notes recording any history or observations and data, including test results, are to be provided by October 31, 2015, or at such other date as may be agreed upon by counsel, if the presently‑scheduled examination does not go ahead.

[31] It does seem to me that the plaintiff has been largely successful here, and so the costs of this application are to the plaintiff in any event of the cause.

ICBC Request for Photos of Dancing, Vacationing and Socializing Dismissed

Written by admin on November 2, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing a request for a Plaintiff to produce various photographs.
In today’s case (Wilder v. Munro) the Plaintiff was injured in a 2010 collision and sued for damages. In the course of the lawsuit ICBC reviewed the Plaintiff’s social media accounts and obtained “ten separate videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015, photographs of the plaintiff performing dance moves, Facebook status posts discussing upcoming dance shows and auditions in 2011, photographs and posts about Ms. Wilder’s attendance at music festivals in 2014, travel related to the home based business and socializing with friends.“.
The Defendant brought an application requesting that

The plaintiff, within 7 days, deliver an amended list of documents:

a. identifying the photographs and video in her possession and control in which she is featured, identifying them by location, date and time, if available:

1. participating in dance training, rehearsals, auditions or competitions from 29 July 2008 to present;

2. attending music festivals since 29 July 2010;

3. socializing between January 2011 and September 2012;

4. on vacation since 29 July 2010;

ii. The plaintiff may edit the photographs prior to disclosure to protect the privacy of other individuals;

In rejecting this request Master Bouck provided the following reasons:

[16] A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality: Cui at para. 9.

[17] All three of the noted cases were personal injury actions. In all three, the plaintiff’s post-accident physical capabilities were in issue as was the impact of alleged injuries on the particular plaintiff’s social life. In the first two cases, disclosure of the plaintiff’s social media content was ordered; in Dosanjh it was not. While the plaintiff’s circumstances as described in Cui bear some resemblance to the case at bar, the result can be distinguished. Like the case at bar, the defence had obtained photographs, postings, and the like from the plaintiff’s social media platforms. However, unlike here, the defence was unable to identify the dates of the photographs or videos and thus correlate the content to either the pre or post-accident period. The court ordered the plaintiff to disclose additional social media content and identify the date or time frame of content’s creation. Of note is that this additional disclosure may not have been ordered had Ms. Cui provided the dates of the videos, photographs pursuant to the defendants’ notice to admit: para. 33. Instead, the plaintiff declined to make any such admissions thus necessitating the chambers application.

[18] In terms of the proportionality factors, the plaintiff’s claim is not complex. There is no debate that this action will proceed to trial under Rule 15-1. The defendants filed the fast track notice and the plaintiff has no intention of having the action removed from the rule’s operation. The parties appear to agree that the trial can be completed in three days. While the plaintiff’s damages are not limited to $100,000, the evidence on this application suggests that the claim will not greatly exceed that figure, if at all.

[19] The plaintiff is employed with no limitations on her ability to function at that job. It will be up to the trial judge to decide what compensation, if any, Ms. Wilder deserves for an overall reduced earning capacity. However, the defendants’ submissions on this application presume that a career in dance is financially lucrative and thus the potential award for this capital asset loss justifies the breadth of the order sought. If this theory was reasonably accurate, it would be expected that one or both of the parties would wish to remove the proceeding from fast track.

[20] On the question of probative value, the defendants already have in their possession dozens of photographs and more than ten videos which show the plaintiff’s physical abilities and social activities in the years following the accident. I am not persuaded that adding to this collection is necessary to disprove the plaintiff’s claims. Moreover, the defendants have other evidence in the form of Dr. Winston’s report to also disprove the plaintiff’s claim of a lost dancing career.

[21] Finally, I agree with the plaintiff that the defendants have failed to demonstrate the probative value of any photographs or videos depicting the plaintiff socializing or on vacation. If I am wrong on the question of probative value, then I find that the production of this information, including all that would be entailed in protecting the privacy rights of third parties, is not proportionate to the issues to be determined at trial.

Liberal Use of Discovery Transcripts Granted in Case of Indivisible Injuries

Written by admin on October 27, 2015. Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, considering whether defendants in separate actions could use each others examination for discovery transcripts of the Plaintiff in trial.
In today’s case (Elworthy v. Tillit) the Plaintiff alleged personal injury from two separate matters. Both parties agreed the separate lawsuits should be heard together given overlapping injury but could not agree if both defendants could use the Plaintiff’s examination for discovery transcripts from the separate actions. In finding they could Master Bouck provided the following reasons:

6] The defendant Stewart led the submissions on the law with references to several common law authorities including Gill v. Gill, 2013 BCSC 2365. In that case, the court decided that the implied undertaking rule could be waived so that a transcript of the plaintiff’s examination for discovery in a Part 7 action could be used in the plaintiff’s tort action, and vice versa.

[7] Although not precisely the same factual matrix as the case at bar, I find that the legal analysis and result in Gill v. Gill should be followed here. The same concerns raised by the plaintiff in this case were considered and rejected by the court in Gill. Here, the issues of causation and indivisible injuries provide the commonality between the actions.

[8] The defendants differ on the language to be used in this particular case plan order. In my view, the appropriate language is that found in Peel v. Western Delta, 2003 BCSC 784 at para. 30. The order pronounced is that the evidence that is otherwise admissible and relevant, obtained at the examination for discovery in Victoria Registry action no.14-0946 (either concluded or future) will be admissible both in that action and in Victoria Registry action no. 15-2263 as if the evidence had been obtained in the other action.

Failing to Overtake Traffic "As Quickly and as Reasonably As Possible" Found Negligent

Written by admin on October 22, 2015. Posted in ICBC Liability (fault) Cases, Uncategorized.

Update July 20, 2016 – the below decision was overturned today by the BC Court of Appeal.
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Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that it is negligent for a motorist to not drive ‘as quickly and as reasonably as possible‘ when overtaking another vehicle on a highway.
In today’s case (Borgiford v. Thue) the Plaintiff vehicle was in the left hand lane of a highway overtaking tractor-trailers who were travelling at a low rate of speed as they ascended a steep hill. The Plaintiff vehicle’s motorist was a ‘timid’ driver and was overtaking the slow moving vehicles at a speed of 85 kmph despite a speed limit of 110 kmph. At the same time a Suburban approached the vehicles at a high rate of speed, clipped one of the slow moving tractor-trailers and lost control resulting in apparent profound injuries to his passengers.
The Court found the speeding motorist clearly negligent but went on to find the slow passing plaintiff vehicle was also negligent for not passing the tractor trailers as quickly as possible. In reaching this finding Mr. Justice Rogers provided the following reasons:
[99] In my view, the standard of care owed by a reasonable and prudent driver in Mrs. Boizard’s situation required that hypothetical driver to overtake Mr. Einarson’s unit as quickly as reasonably possible. I find that is the standard because the speed limit on the highway was 110 kph and any reasonable operator on that road would have known that motorists often go faster, sometimes much faster, than the speed limit. A reasonable driver in Mrs. Boizard’s situation would have known that for so long as he was in the left-most lane the entire width of the highway was occupied by relatively slow moving traffic. A motorist approaching from the rear and traveling at 110 kph would find his way blocked by the slower vehicle in the left-most lane.

[100] I must therefore ask myself: was Mrs. Boizard overtaking Mr. Einarson as quickly as reasonably possible? Here Mr. Fiorin’s opinion does not really help Mrs. Boizard. That is because the key element of Mr. Foirin’s opinion is that operators of large vehicles are entitled to take steps to keep up the momentum of their units as they ascend a hill. That may be true, but it does not apply to Mrs. Boizard. That is because on Mrs. Boizard’s own evidence the pickup truck she was driving was capable of going up Larson Hill faster than 85 kph. This was not a case of the Boizard truck struggling to keep up its speed of 80 to 85 kph. This was a case of Mrs. Boizard making a conscious and deliberate decision to not go faster than 85 kph.

[101] I do not doubt Mrs. Boizard’s sincerity when she testifies that she felt that it was safer to go 85 kph while passing Mr. Einarson. However, her subjective opinion cannot carry the day. The real question is whether a reasonable and prudent motorist in her situation could have and would have overtaken Mr. Einarson more quickly. The evidence does not satisfy me that a higher speed for the camper while passing would, in fact, have created an unsafe circumstance for either the Boizards or Mr. Einarson. I am thoroughly satisfied, however, that clearing the left-most lane would have created a safer circumstance for other motorists approaching from the rear. Put another way, the less time that Mrs. Boizard stayed in the left-most lane, the safer it would be for other, faster traveling, motorists who also wished to overtake Mr. Einarson’s unit.

[102] In short, I find that Mrs. Boizard was a timid driver – she could have driven her camper faster and could have overtaken Mr. Einarson’s tractor-trailer more quickly. Instead, Mrs. Boizard chose to drive at a relatively leisurely pace and in so doing, she blocked the left-most lane for a longer period of time than was reasonably necessary. I find that Mrs. Boizard’s decision to drive as slowly as she did and to occupy the overtaking lane for as long as she did fell below the standard of care that she owed to other users of the highway. I find that she was negligent in that regard.

[103] The question now arises whether either of Mrs. Boizard’s negligent acts was a cause of the accident. As we know from Athey it is not necessary that Mrs. Boizard’s negligence be the sole cause of the accident. The law is also clear that causation is not determined by which of the defendants had the last clear chance to avoid the mishap. All that is necessary is for Mrs. Boizard’s negligence to be a cause; that is to say, but for her negligence, the accident would not have happened.

[104] In my view, the link between Mrs. Boizard’s negligence in changing lanes as she did is too weak to support a finding that that particular act caused the accident. I have come to that conclusion because the Thue Suburban was not in sight when Mrs. Boizard changed lanes. The Suburban came around the first curve on Larson Hill after Mrs. Boizard was in the left-most lane. The lane change itself did not put Mr. Thue and his passengers in jeopardy.

[105] However, had Mrs. Boizard accelerated her camper to a reasonable overtaking speed, she would have blocked the overtaking lane for a shorter period of time. Given that when the accident happened the camper was at the junction between Mr. Einarson’s tractor and trailer, it would not have taken much more speed on Mrs. Boizard’s part to have gotten past Mr. Einarson ahead of Mr. Thue’s arrival. In my opinion, there is a sufficient causal link between Mrs. Boizard’s decision to overtake at a leisurely pace and the accident to support a finding that but for that decision, the accident may not have happened. Put another way, in order for the accident to have happened the way it did, it was necessary for Mrs. Boizard to have blocked the overtaking lane.

$50,000 Non-Pecuniary Assessment for Mild Soft Tissue Injuries With Somatic Disorder

Written by admin on October 20, 2015. Posted in ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for soft tissue injuries with psychological overlay caused by a collision.
In today’s case (Zaluski v. Verth) the Plaintiff was involved in a 2011 collision caused by the Defendant. Fault was admitted. The Court did not accept all of the Plaintiff’s evidence but did accept the collision caused soft tissue injuries with a somatic disorder. In assessing non-pecuniary damages at $50,000 Mr. Justice Tindale provided the following reasons:

142] Based on all of the evidence I do however accept that the plaintiff did receive a mild soft tissue injury to her neck which affected her shoulders and back. I also accept Dr. Riar’s evidence that the plaintiff as a result of the MVA as suffered a somatic symptom disorder as well as anxiety and depression. I do not accept that the plaintiff has been disabled for any lengthy period from working as a result of these injuries. She was able to work significant hours at the Phoenix Medical Imaging well after the MVA. She only missed one day of work from the Nechako Medical Clinic as a result of the MVA.

[143] In my view the plaintiff has exaggerated the severity and duration of her physical symptoms. I do not accept that her psychological condition disabled her from working.

[144] The plaintiff does not suffer from disorders such as fibromyalgia, Post Traumatic Stress Disorder or severe and prolonged headaches. The cases that the plaintiff relies upon are of individuals who are much more seriously injured than the plaintiff in this case and have many of the above noted disorders…

[147] In my view given the nature and duration of both the plaintiff’s physical and psychological injuries and considering the factors in Stapley the appropriate amount for non-pecuniary damages is $50,000.

Indivisible Injuries Cannot Get Around the Worker/Worker Defence to Recovery

Written by admin on October 19, 2015. Posted in Uncategorized.

Update May 16, 2016 – the below decision was apparently appealed and a settlement was reached prior to judicial disposition. For a case calling the below reasoning “highly debatable” you can click here.
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Adding to this site’s archives addressing the law of indivisible injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether the principle of indivisible injury allows a claimant to collect damages for a claim that is otherwise barred by the Workers Compensation Act. In short the Court ruled that this cannot be done.
In today’s case (Pinch v. Hofstee) the Plaintiff was injured in a 2010 collision and sued for damages. In 2013 the Plaintiff was involved in a second collision which proceeded through WorkSafeBC as both motorists were in the course of their employment at the time.
At the trial for the first collision the Court found that both crashes resulted in indivisible injury. The general rule with indivisible injuries from two non at-fault events is that the Plaintiff can seek full compensation for these from a single tortfeasor. In finding this general rule does not apply in the case of indivisible injuries contributed to by an event caught by the worker/worker bar Mr. Justice Burnyeat provided the following reasons:

[53] Having concluded that the injuries suffered were indivisible, the question that arises is whether Mr. Pinch is in a position to claim against Mr. Hofstee for the injuries suffered by him in MVA #2. Despite my conclusion that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 were indivisible, I nevertheless conclude that Mr. Pinch is not in a position to claim damages against Mr. Hofstee arising out of the injuries that were incurred as a result of MVA #2. I am satisfied that the effect of s. 10 of the Act precludes seeking damages arising from what are said to be indivisible damages.

[54] Section 10(1) of the Act makes it clear that the provisions of that Part of the Act are “…in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any cause of action…” [emphasis added]. Therefore, s.10(1) refers not only to “rights of action” but “any right…founded on a breach of duty of care or any other cause of action…” I am satisfied that the “right” to claim for recovery for indivisible damages is a right that is precluded by s. 10(1) of the Act, being a right which is separate and distinct from a right to commence an action. In this regard, s. 10(1) provides not only that the provision of the Part of the Act is in lieu of “any right and rights of action…” founded on the breach of duty of care that Mr. Pinch may have against an employee or an employer but also that “no action in respect of it lies” and that “any right…founded in a breach of duty of care” is precluded. I am satisfied that this precludes any right that Mr. Pinch may have which is founded on a breach of duty of care by Mr. Hofstee.

[55] The purpose of this section of the Act is to remove from the jurisdiction of the court the ability to deal with the rights of employees such as Mr. Pinch and the liability of employers when personal injuries are suffered in the course of employment. In this regard see DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445 (H.C.) and Mitrunen v. Anthes Equipment Ltd. (1984) 57 B.C.L.R. 287. In Mitrunen, Gould J. dealt with an action against Dominion Construction Company Limited which was an employer and Anthes Equipment Ltd. that was not. After citing with approval the decision in DiCarlo, supra, in deciding that he was not bound by the unreported decision in Middleton v. Chen (C810663‑October 25, 1982), Gould J. determined that the Act governed and that it relieved the non‑employer defendant for liability for damages caused by the fault of the employer defendant. On appeal, (1985) 17 D.L.R. (4th) 567, Seaton J.A., on behalf of the Court made this statement:

Section 10 first, in s-s (1), takes away the plaintiffs right of action against his employer and against co-employees. Subsections (2) to (5) deal with compensation and the bringing of an action against others. Subsection (6) talks about the worker, his dependant or the board bringing an action against some person other than an employer or worker. Subsection (6) thus leads logically to s-s (7) which, in its beginning words, clearly encompasses actions against those not employers or fellow workers. What it then says is that in that action if it is found that the death was due partly to a breach of duty of the employer or worker, then no damages are recoverable for the portion of the loss or damage caused by the negligence of the employer or worker. It does not say no damages are recoverable against the employer or worker; it is simply no damages are recoverable. On the face of it that must mean against anyone. The subsection, as I have mentioned, deals with an action brought against some person other than an employer or worker and it deals with actions brought by workers, dependants or by the board. It does not appear to deal with actions against employers or workers; they are covered by s-s (1).

(at para. 14)

[56] The statement of Seaton J.A. is clear – “No damages are recoverable”. I am satisfied that the decisions in Mitrunen, supra, relieve a non‑employer defendant such as Mr. Hofstee from liability for damages caused by his or her fault.

[57] Section 10(2) reinforces this interpretation as it describes the ability of Mr. Pinch to “claim compensation” or “bring an action”. I cannot conclude that the ability to “claim compensation” expands the right of Mr. Pinch to claim against Mr. Hofstee that which he could not claim directly against the driver of the vehicle involved in MVA #2.

[58] Section 10(7) of the Act also re-enforces this interpretation of s. 10(1) of the Act as it is clear that “no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker…” If no “damages, contributions or indemnity” are recoverable by Mr. Pinch against the other driver involved in MVA #2, I cannot conclude that the indivisible damages caused by the negligence of the individual who caused MVA #2 would be recoverable against Mr. Hofstee.

[59] Section 10(7) of the Act is broad enough to exclude the ability of the Mr. Hofstee to claim contribution or indemnity against the driver involved in MVA #2: Storey v. Canada Post Corp. (2006) 55 B.C.L.R. (4th) 131 (C.A.) at paras. 42‑45. It could not have been intended by the Legislature that there be an exception to the general rule that no damages were recoverable and that a claim for contribution was not available, but that the full amount of the damages from MVA #1 and MVA #2 would be available against Mr. Hofstee despite the fact that he would not be in a position to look to the driver involved in MVA #2 for contribution. I conclude that the effect of s. 10(7) of the Act was intended by the Legislature to protect not only those who were immune from suit under the scheme created by the Act from exposure to joint liability but also those who were not in a position to call upon another tortfeasor for contribution.

[60] I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages. Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care. A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts. Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[61] I propose to deal with the damages suffered by Mr. Pinch as a result of MVA #1 as if MVA #2 had not occurred. However, despite finding that the damages suffered in the two accidents were indivisible, I will then assess separately those damages which I can attribute only to MVA #2. I do so in order to comply with s.10(7) of the Act which requires that I determine “…the portion of the loss or damages caused by…[the negligence of the driver in MVA #2]…although the…worker is not a party to the action”. While it may seem inappropriate to determine the loss or damage caused by the driver involved in MVA #2 where a determination has been made that the damages arising out of MVA #1 and MVA #2 are indivisible, where the driver involved in MVA #2 is not a party to these proceedings, and where there has been no finding of liability for MVA #2, I will nevertheless do so because that is what is required under s. 10(7) of the Act.

"All Actual Instructions Received by the Expert" Required by BC Rules of Court

Written by admin on October 19, 2015. Posted in BCSC Civil Rule 11, Civil Procedure.

Reasons for judgement were released today (Pinch v. Hofstee) addressing the scope of expert instructions that need to be disclosed to make expert evidence admissible. In short the Court noted that a “paraphrased summary of instructions” was insufficient.
In noting what Rule 11-6(1)(c) requires Mr. Justice Burnyeat provided the following reasons:

[1] The parties presented a number of expert reports. While some of the expert reports attached the instructions that were provided to the expert by counsel, some of the expert reports merely provided a paraphrased summary of instructions.

[2] Rule 11‑6 of the Supreme Court Civil Rules provides that, for an expert report to be tendered in evidence, it must set out a number of matters including “the instructions provided to the expert in relation to the proceeding” [Rule 11‑6(1)(c)].

[3] In order to meet the requirement of Rule 11‑6(1)(c), all actual instructions received by the expert should be appended to the expert report that is to be tendered into evidence. It is not sufficient to satisfy Rule 11‑6(1)(c) to have the expert either to paraphrase the instructions received or to include some but not all of the instructions received.

[4] The parties will be at liberty to file affidavits setting out the instructions that were provided to the experts who have provided reports which have now been tendered into evidence.

Court Rejects Request to Produce Settlement Documents From Previous Injury Claim

Written by admin on October 16, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a request to produce documents relating to the settlement of a previous personal injury claim in the prosecution of a subsequent claim.
In today’s case (Gamble v. Brown) the Plaintiff was injured in a 2009 collision, brought a claim for damages and ultimately settled. She was then injured in a 2011 collision. In the current lawsuit the Defendant requested broad production of the previous file information including “any mediation brief, settlement letter, file memo, communication or similar document” . The Plaintiff agreed to produce relevant medical records but not all records captured in the broad request. The Defendant applied to court for an order to produce these documents but this was dismissed. In finding the sought order was inappropriate Master Taylor provided the following reasons:

[29] In the case at bar, the first accident occurred on March 19, 2009. The subject accident occurred on September 1, 2011. By account of some of her physicians, and at least one expert report prepared for the defendant, the plaintiff was doing well and not suffering any effects from the 2009 accident well before the occurrence of the 2011 accident.

[30] As well, the plaintiff has offered the defendant a letter from her previous solicitor confirming the terms of the settlement she received for the injuries she sustained in the 2009 accident, together with medical-legal documents from the previous accident.

[31] In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.

[32] The final question becomes whether or not the plaintiff should place any terms on the production and disclosure of the documents she has provided to the defendant. In my view that is a matter for the trial judge to determine at the outset of the trial and in the absence of the jury, aside from the issue of the plaintiff maintaining her solicitor-client privilege with Mr. Wytrychowski, which should be preserved in any event.

[33] In conclusion, I determine that the defendant has not satisfied me that I should order breach of the settlement privilege attached to the documents prepared by the plaintiff’s previous counsel for the plaintiff in the 2009 Alberta case. Accordingly, the defendant’s application is dismissed with costs to the plaintiff.

Court Critical of ICBC Practices Following Hit and Run Collisions

Written by admin on October 14, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, with critical comments aimed at ICBC for their practices in dealing with hit and run claims.
In today’s case (Fitger v. John Doe) the Plaintiff was injured by the actions of an unidentified motorist. The Plaintiff contacted ICBC shortly after the collision and “essentially took the actions suggested by his ICBC claim adjuster“. In the lawsuit for damages ICBC then raised the standard s. 24 defence arguing the Plaintiff did not take all reasonable steps to identify the at fault motorist. The Plaintiff argued the defense should be struck as he relied on ICBC’s guidance. The court, while critical of ICBC’s practices, noted their actions did not go so far as to strip them of the protections of the statutory defense. In addressing ICBC’s practices Mr. Justice Meiklem commented as follows:
[10] Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116…

[16] While the doctrine of estoppel can, as a general proposition, be applied in respect of interfering with statutory rights, s. 24(5) of the Act is as much about creating an obligation on the courts to enforce an obligation on a class of claimants in the cause of preventing fraudulent claims as it is about providing a defence to ICBC.

[17] In my view, ICBC’s failure to inform the plaintiff of his s. 24(5) obligation was ill-advised from a public interest perspective. To continue to process his claim without comment on his accident-day inaction and then surprise him by pleading and pursuing a s. 24(5) defence was unfair from the plaintiff’s perspective. These facts do not, in the circumstances of this case, amount to conduct warranting the application of the doctrine of estoppel to the limited remaining issue in regard to s. 24(5).